“A judge is to apply the Constitution according to the principles intended by those who ratified the document,” said Robert H Bork, who failed to win confirmation as a judge to the US Supreme Court in 1987.
Advocates of the theory of ‘original intent’ adamantly argue that judges should follow the letter of law and not make law, which is the exclusive domain of the legislature. In the name of interpreting law, they contend, judges cannot be allowed to apply their own ideologies and preferences to the decisions they call upon to reach as this leads to “judicial anarchy”.
The critique in Church of Holy Trinity v United States (1892) by Justice Antonin Scalia as “nothing but an invitation to judicial lawmaking” came under attack by anthropologist Vincent Crapanzano who pointed out that “original intent does not offer a fixed standard that can serve as an inoculation against interpretation but in itself an interpretation, one with its own, often divisive and partisan, view of the decisions judges ought to be taking”.
The debate about ‘original intent’ versus “judicial lawmaking” has assumed great relevance in Pakistan in the light of the controversy over who can announce the date for provincial assemblies if dissolved before completing their stipulated period of five years. All perceive non-declaration of dates for elections of Punjab and Khyber Pakhtunkhwa assemblies as a threat to democracy, excluding the alliance government of the Pakistan Democratic Movement (PDM).
Lawmakers feel that unelected judges have no authority to “impose their will on the parliament – rather on the entire nation as a whole”. Decisions of courts, as Bork puts is, “might be made subject to modifications or reversal by majority vote of the Senate and House of Representatives. Alternatively, courts might be deprived of the power of constitutional review”. Bork’s ideas about curtailing the powers of judiciary, elaborated in detail in his book, The Tempting of America: The Political Solution of the Law, go the extent that “an elected official will one day simply refuse to comply with a Supreme Court decision”.
Since the bizarre episode of March 9, 2007, there lurks a continuous tug of war between the proponents of cronyism and advocates of rule of law in Pakistan. Once the defenders of the establishment, most of whom are now part of the PDM, want a free hand to plunder the wealth of the nation, subjugate their own people, deny them human rights and ensure that there is no room for radical judicial activism in this society as a means to empower the have-nots. This is why radical judiciary is a threat to both the corrupt elected-members (sic) and military-civil complex thriving on State resources.
The ruling classes cannot afford radical judiciary for obvious vested interests – the present judicial structure is part of the status quo and not a catalyst for change as wrongly assumed by many. Advocates of rule of law rightly argue that dispensation of justice for the poor is not possible unless a competent, efficient and self-funded judiciary replaces the existing one. Justice at grassroots level alone can establish a responsible government and an equitable social order, which is sine qua non of constitutional democracy.
It is now the sole responsibility of all democratic forces to galvanize and mobilise people to enforce constitutionalism in Pakistan. We have one of the worst court systems in the world. Political questions cannot be resolved in the courts, yet our apex court is unsuccessfully pursuing this Sisyphean task. Since our judiciary in the past endorsed military takeovers, the entire society is facing devastating effects of perpetual undemocratic rules – military and civilian alike.
The main cause of our present day socio-political and economic chaos is corrupt and ineffectual leadership, existence of repressive institutions (military, civil and judicial) which are essentially anti-people – they are least concerned with the welfare of the common people. We must realise that at the heart of the concept of constitutional democracy is the assurance for citizens that their inalienable rights are going to be respected and implemented by the people elected by them.
Completing its golden jubilee on April 10, 2023, our constitution is a living and vibrant document that determines the future direction of the nation, provided there is respect for the document and for rule of law. In a country where the non-elected, control democratic institutions, there can neither be democracy nor a constitution. It is high time that the parliament should work for the supremacy of constitution and the rule of law.
In a democratic set-up, the electoral process ensures the dominance of the people over those who hold political offices. In Pakistan, forces of status quo want to determine it through a leadership lacking support of the masses and declaring elections as a luxury. This brand of ‘democracy’ is unknown to students of constitutional law anywhere in the world. One wonders what useful purpose this unjust and unlawful process can yield. It is only bound to frustrate the people’s verdict, forcing them to believe that the entire electoral process was just a farce.
Civilian rulers, following in the footsteps of our military dictators, have also deprived the citizens of fundamental rights of access to free health, educational facilities, and dispensation of justice.
The only remedy left is to resist all kinds of undemocratic postures and work for constitutionalism. All the state organs must discharge their functions within strict parameters and powers laid down in the supreme law of the land. This is the only way to sustain democracy, establish responsible government and protect rights of the masses guaranteed in the 1973 constitution. Legislature is sovereign but the supremacy of constitution is above everything – legislators in fact exercise delegated powers given by the people within the framework of the constitution.
Georges-Augustin Bidault (1899-1983), French politician who was active in the French Resistance and after the World War II served as foreign minister and prime minister on several occasions, very aptly observes: “Good or bad, the fortune of a nation depends on three factors; its Constitution, the way the Constitution is made to work, and the respect it inspires.”
Let us work for a Pakistan where the people are truly represented by elected members within the four corners of the constitution. To attain this goal, masses will have to demonstrate determination, unity, and the right exercise of their votes. Pro-democratic forces, with the people’s strong support behind them, must make all-out efforts for establishing a constitutional rule. A responsible media can play a vital role for effective accountability for all – exposing the vested interest, highlighting the agenda for economic growth with equitable distribution of national resources and social justice for all.