Theoretical debates

Practical repercussions

The parliament amends and feeds into the constitution. The constitution affects how the parliament does the aforementioned. Debating which one is more supreme has a chicken-and-egg-question ring to it. But is one splitting hairs when one does debate it? Not entirely.
The chief justice certainly stirred up a bit of a controversy when he said that the constitution, not the parliament, was supreme and that the courts were well within their rights to strike down anything that is in conflict with the constitution. This prompted former prime minister Yousaf Raza Gilani to say the constitution existed and the judges incarcerated. It was only when the freely elected parliament came into existence that the judges were freed.
Before we get into the debate itself, let us look at the meta debate. Let’s start with the chief justice’s statement. The CJ’s restoration came after a long struggle where he continued to stand up heroically to a dictator and toured the country along with his faithful lawyers’ community. It is time to get out of that mindset. Judges should speak only through their judgments.
How does that work? The way the US chief justice did, in the Supreme Court’s verdict on President Obama’s healthcare legislation. “It is not our job,” said Justice John Roberts, “to protect the people from the consequences of their political choices.” A wealth of wisdom there. But that statement itself isn’t the only thing that activist judiciaries from around the world should learn from. How about the background of Justice Roberts himself? He is from the “mostly conservative” judgments category – a euphemism for a judge “from” the Republican Party. President Bush appointed him to the court. Yet, his was the vote that finally deemed the bill constitutional.
That is because he realised that his own political orientation and views shouldn’t affect his job. And that is to interpret the law, not draft it.
All the pillars of the state have their limits. But the court’s is the final word on what those limits, including its own, are. This gives the judiciary an immense power and places upon it a responsibility of an equal measure. It can send elected prime ministers packing. It can deem laws passed by parliament as unconstitutional. The question is whether it should.
Non-representative institutions should know their place and duty.