The Supreme Court and the High Court of Pakistan have been judicially active in their endeavor to institute effective checks and balances on the government. The courts, although driven by noble motives, are infringing upon the spheres of the other two branches of the government. The rulings of the courts upon matters belonging to the legislative and public sphere are undermining the credibility of the Parliament and denying the possibility of evolution to a nascent democracy in Pakistan.
Judicial minimalism, made popular by the American jurist Cass Sunstein, simply put is the philosophy that argues that judges should adjudicate the particular dispute at hand and not engage in broad theorizing that effects people who are not party to the dispute. In doing so, the judges promote deliberative democracy, encouraging the political branches and society as a whole to debate the core issues and arrive at a more sustainable consensus. I believe that the Supreme Court of Pakistan should act with minimalism. In an embryonic democracy, plagued with a state of ethical and political uncertainty, such as Pakistan, the courts may not always have the best or the ultimate answers to all the questions.
The Lahore High Court recently decided to impose a ban on Facebook, YouTube, and Google, amongst other websites through an interim order, alleging these websites contained blasphemous content. The ban was subsequently lifted, but the case remains pending before the Lahore High Court. The ostensibly blasphemous content on these websites generated a public discourse regarding the scope and boundaries of "freedom of speech." But before the debate could engage the public and reach a social consensus, the High Court intervened. Any debate now carries the possibility of contempt proceedings, since it would be commenting on a sub judice matter (i.e. pending before the court).
Similarly, the Supreme Court is hearing the petition challenging the constitutionality of the 18th Amendment to the Constitution [PDF], which curbed the powers of the President to unilaterally dissolve Parliament. The 18th Amendment was passed by the Parliament unanimously after more than one year of debate inside and outside of the Parliament. The first legal issue to be decided in the petition was regarding maintainability (i.e. whether the Supreme Court had the power to review an amendment made to the Constitution). The argument underlying this issue is that the Supreme Court is empowered to review constitutional amendments if they violate the "Basic Structure" of the Constitution. However, the Supreme Court in a long list of cases, with the most recent being Pakistan Lawyers Forum v. Federation of Pakistan, (PLD 2005 SC 719) has held that "...Limitations on the power of Parliament to make amendments to such basic structure, such limitations are to be exercised and enforced not by the judiciary (as in the case of conflict between a statute and Article 8), but by the body politic, i.e., the people of Pakistan." The Supreme Court admitted the petition in the 18th Amendment case, implying it is maintainable without overruling three decades of jurisprudence and precedents to the contrary.
The core question is not regarding the jurisdiction of the Supreme Court, but rather what is the effect of extending the sphere of the Court's influence to matters that belong to the public sphere or other branches of the government. The 18th amendment case is an example of the Supreme Court ruling on (and possibly against) the unanimous consensus of the elected representatives of the people.
Another example is the suo moto (of its own motion) notice taken by Lahore High Court's Divisional Bench on the high price of sugar in the country. The superior courts in Pakistan are empowered to take suo moto cognizance of any matter the court feels is in public interest. In general terms, this power means the court can take up a matter and rule on it without anyone approaching the court. The court fixed the price of sugar at 40 Pakistani Rupees per kilogram, ignoring the market forces influencing the price. The court's credentials in economic management are open to debate. Although driven by the best of motives, the outcome was that neither the price nor the supply stabilized. This was question for the economists and Parliament, not for the courts. Similar examples can be found in the Supreme Court declaring the levy of the Carbon Tax as invalid and the annulment of the privatization [PDF] of the Pakistan Steel Mill.
Rather than the courts providing broad, sweeping judgments on controversial issues, judicial minimalism enhances democratic self-government by allowing public debates to stay in the political realm. For instance, the allegations of corruption on President Zardari and the existence of the National Reconciliation Ordinance (NRO) were in full public view before the February 2008 elections. The Honorable Supreme Court had the constitutional power to strike down the NRO (which it did) and has the same power regarding the 18th Amendment. However, the court needs to be mindful of the unintended, adverse consequences of its decisions especially when the area involves a highly contentious question now receiving attention by the people. In such areas, courts should be cognizant that, even relying on their own deepest convictions, they may err, especially when the decisions entails overturning the consensus of the people.
Judicial minimalism can promote democratic goals, given Pakistan's constitutional history of leaving certain things undecided, allowing opinion to form over time and stimulating the processes of democratic deliberation and public discourse. In certain cases, courts should wait for an actual dispute to come up before them. The independent Honorable Supreme Court has to resist the urge of setting everything right in one or a few cases. Sometimes people will put up with much hardship if they are permitted the freedom to draw their own conclusions, even though the conclusions may be wrong.
Saroop Ijaz is an advocate practicing at the Lahore High Court (LHC) and can be reached at email@example.com.
Suggested citation: Saroop Ijaz, The Case for Judicial Minimalism in Pakistan, JURIST - Forum, Oct. 11, 2010, http://jurist.org/forum/2010/10/the-case-for-judicial-minimalism-in-pakistan.php.