Who guards the guardians?

In the wake of proceedings laying a challenge to the 26th Amendment by passionate proponents of judicial independence, I believe it is important not to lose sight of what led us here.

The ground for the challenge is the supposed curtailment of the independence of the judiciary. Through amendments to Article 184(3) and 199, the Supreme Court and high courts have expressly been stripped of suo-motu jurisdiction.

Article 175A, as amended, changes the composition of the body responsible for superior court appointments, the Judicial Commission of Pakistan (JCP), resulting in non-judicial members constituting the majority. And finally, the newly inserted Article 191A, which divides superior courts into constitutional and regular benches.

As you all will inevitably see, over the course of the proceedings, the "doctrine of basic structure" will be tossed around the court ad nauseam. Briefly, this was an artful invention of the Supreme Court of India in response to the draconian regime of Indira Gandhi. While we can acknowledge short-term benefits in that context, the underlying logic of the "doctrine" is, in my view, inherently flawed.

It stipulates that there are some ethereal, higher ideals which precede the constitution itself. Unfortunately, we have no means of communicating with the angelic realm. So, in practical terms, we are left with these ideals as they reveal themselves unto a select few judges. And herein lies the problem.

Let's start with the bare basics. There are three organs of state: legislature, executive and judiciary. Each, respectively, to enact, implement and interpret the laws of the land. These powers are bestowed by a supreme authority that sits above these organs. This supreme authority tends, for most states, to be a written constitution. Pakistan is no exception – though we’ve had more cracks at it than most. Already, the flawed logic of the basic structure begins to unwind.

The function of interpretation of the law in modern judicial history started with a relatively limited scope. But with time, this expanded to a power aimed at broader checks and balances. 

The first target of this expansion was the executive. In the early 17th century in the UK, the basis for the extraordinary power of judicial review was propounded to act as a check on executive power. Through this, courts assumed the power to determine whether executive acts are performed as per law.

Thereafter, it was the US Supreme Court that laid the foundation for reviewing the legitimacy of the law itself. In the case of Marbury v Madison, it was held that if a law, the product of legislative function, conflicted with the Constitution, such a law would be void. Empowered by its duty to interpret laws and the Constitution, the judiciary effectively assumed a position slightly elevated from its erstwhile contemporaries.

However, these overly broad powers were always meant to carry the subtext of self-restraint. And despite many a pronouncement and academic critique on the need for the judiciary to exercise said self-restraint, the corrupting nature of power ended up inching its way to the surface.

It is for this reason that even within the very judicial systems that created this jurisdiction, voices echoed for sparing use of judicial review. Standards have been laid down in many jurisdictions stipulating the ‘last resort’ nature of judicial intervention. But these are standards of which our courts fall woefully short.

The cup overfloweth with the chequered past of our bravado-fuelled, John Wayne-esque, enrobed adventurists. Far less adventurous behaviour from benches has resulted in intervention to curtail the misuse of judicial power in other jurisdictions.

In the UK, the Judicial Review and Courts Act 2022 contains provisions fettering certain judicial review powers. The Fourth Amendment to the Fundamental Law of Hungary (their constitution), enacted in 2013, among other things, expressly prohibits the Constitutional Court from scrutinising any amendment to the Fundamental Law on its own motion and even limits its ability to review ordinary legislation.

Therefore, the desire to check the unbridled powers of the judiciary is by no means novel or unprecedented – though many will try to argue this using sweeping rhetoric.

Now moving on to my even more cynical point, which arises from what we supposedly stand to lose by fettering the right and honourable: The independence of the judiciary and, by extension, its ability to uphold our constitutional and democratic values.

Proponents of this argument fail to see that these are the same "free and self-regulating" courts that have rubber-stamped every trampling of our constitution committed in the past, making them second to none (or perhaps to just the one) when it comes to flouting democracy. 

In the most recent case of Pervez Musharraf, it was this very Supreme Court which went so far as to judicially permit an unelected chief executive (whatever on earth that role is supposed to entail in a so-called democratic republic) to unilaterally amend the constitution as per his whims. So please forgive my pessimism as I reject this as baseless, considering precedent.

It is said that politicisation is the death of justice. But absolute separation of powers is a utopian ideal. There is no such thing as a completely apolitical court. 

Our courts have so often transparently exposed their political alignment that I truly cannot comprehend what it is that so many of my esteemed colleagues are even fighting for. Maybe these are strategic ploys to aid their careers. Fortunately, or unfortunately, I am not that wise.

It may be an imperfect system that is being laid down with one amendment after another to this oh-so-holy constitution, so jealously guarded by our courts. But this is still a process from which a system can learn, unlike remaining at the mercy of the inner workings of the mind of an unelected arbiter on top. 

Some will argue that a "trial and error" approach towards matters as far-reaching as the dispensation of justice is far too flippant. To them I ask: is it better to perpetuate errors by leaving matters in the hands of the very perpetrators of those errors? What sort of epiphanies are you expecting and why?

At the end of the day, this is how the process must flow if you truly believe in the democratic values laid down by our constitution: people elect parliament; the majority party forms the government; and the courts, without encroaching, check the exercise of powers of both. 

But if you allow the courts to steamroll the electorate, supplant their wisdom for that of all others and go so far as to sit above the very constitution which they have taken an oath to uphold by wielding the elusive "basic structure" doctrine, let’s just do away with this whole façade and replace these robes with more befitting crowns.

The writer is a litigation and transactional lawyer from Lahore who is licensed to appear before the high courts of Pakistan.

Disclaimer: The viewpoints expressed in this piece are the writer's own and don't necessarily reflect Geo.tv's editorial policy.

Originally published in The News