Constitutions and legal systems are often shaped the way they are perceived. Most written constitutions, including our own, carry a “state-action” requirement; constitutional claims can only be asserted against action (or in some cases omission) of government and/or its agents. But constitutions are hardly ever interpreted in a way that pleases everyone. Cultural influences, of course, matter. The idea of “justice” or “Insaaf” complicates matters as much as it can inform useful interpretations that command greater acceptance.
Many people are quite surprised when you tell them that private employers can often interfere with your constitutional rights in a way that government cannot. Whether it is certain kinds of speech or conduct that the constitution entitles you to, a private actor, say an employer (in the absence of specific legislation) can often restrict your freedoms. This idea can seem even offensive to some people. What good is a constitution if it does not protect them against actions of large corporations, including banks, which can adversely affect their interests?
At times, courts try and address the growing power of private actors and lack of effective legislation by imposing some sort of higher duty on private actors. This is sometimes expressed as private actors being invested with a public trust where they carry out functions that affect the welfare of the public. Think public utilities or even education.
In a recent ruling the Islamabad High Court held that the policy of non-refundable fees adopted by public and private sector universities violates the constitution. It works like this: students apply to a number of universities for admission. Some universities make admission offers earlier than others. So even if you are waiting to hear from one university, you might decide to enroll in another. However in order to accept an offer students have to pay non-refundable fees. Later on, if they receive an offer from a school of their first choice, they have to forego the fee they already paid. The Honorable IHC held this policy violative of principles of natural justice, various provisions of the constitution (without laying these out specifically) and also mentioned the ideals, such as non-exploitation, that are supposed to be upheld in an Islamic State.
The Court’s ruling in this case does make new law but it also engages in rhetoric — much of which has been celebrated. The constitutional ideals mentioned are supposed to apply to state actors only, not private parties. Without prejudice to the specific facts or circumstances of the particular case, the court explicitly decries the actions of private parties involved in the education sector. Such cases raise important questions: is it the job of the courts to seek greater acceptance among people or to be faithful to constitutional provisions — and let the legislators do the work of coming up with laws that guide actions of private actors?
And what about the rights of private actors who have a legitimate expectation that constitutional provisions do not apply to them? How far will courts stretch such doctrines in order to prevent exploitation? Is it fair for the courts to apply to private employers obligations that the constitution imposes on the state? Conventional constitutional wisdom argues that states should impose obligations (such as non-discrimination, prohibition of sexual harassment etc) on private actors through separate legislation, rather than the courts imposing such responsibilities while using the constitution.
One argument could be that in a society with pervasive inequality and allegedly non-responsive legislatures, courts need to interpret rights related provisions broadly; even invent rights and broaden the spectrum of responsibility. The pushback would be that laying down rights and responsibilities is the job of the legislators and since people cannot hold judges accountable, courts must not do anything that affects the domain of the legislature. Just as important, it is for the people and not the courts to decide when a legislature is being non-responsive and the price that it should pay for it.
Scholars studying the US Supreme Court have argued that its decisions generally do not stray too far from public opinion. Is it true for Pakistan too? Regardless of the answer, it is important for lawyers and members of the general public to debate the extents and limits of the courts’ role in imposing new obligations.
Broadly interpreted obligations might appeal to the sense of fairness of many folks — until, that is, they themselves are at the receiving end. I have my reservations about judicial activism, more so now than I did before practicing law. Of course this position of mine gets me a lot of flak, from friends and strangers. The former resort to jest whiles the latter hold me in contempt. Both have their place in life.
Broken systems and societies yearn for solutions and saviors — these are often very different things. Assuming the responsibility to fix things is perhaps an attractive temptation for many but there are many good reasons to look before you leap. Faith or sincerity often comes up short when your aim is to solve something. Systems only develop when we show fidelity to some structure of responsibility. The desire to improve the lot of “my country” has its perils.
Just recently a former Pakistani spy-master admitted before the Supreme Court that his illegal actions were motivated by a desire to improve the motherland. Does that view deserve sympathy? Maybe. But acceptance? Hardly so. Wouldn’t the motherland be better off if we start doing what our assigned role is rather than trying to do someone else’s job in a manner that we see fitting?
The writer is a Barrister and an Advocate of the High Courts. He is currently pursuing his LL.M in the US and can be reached at [email protected] or on Twitter @wordoflaw
