Constitutionalism…

… and the burden of being just

The Constitution Avenue in Islamabad these days epitomises uneasy relationships between neighbours. There are those, and apparently in majority, who see the power tussle between the Executive and the Supreme Court in simplistic terms. For them the recent actions of the Honourable Court represent the struggle of a judiciary enforcing the letter and spirit of our constitution. The fact that judges are taking on the Executive, they say, is a triumph of the rule of law and ideals of accountability. This narrative argues that if the people at the helm of affairs are not held accountable, it undermines the basic tenets of any legal system. Of course, this narrative has an emotional appeal but not placing it in context means that it receives unquestioned acceptance.

Institutions and especially apex courts, however, carry burdens – of history, socio-political context and their own morality. Furthermore, courts are in the business of establishing and following what we lawyers call precedents. They derive their validity from a consistency of approach towards cases that end up before them.

Constitutions empower and at the same time bind courts. The limits of the judicial function may not always appeal to the common man’s sense of that most abstract thing called ‘justice’ but that is the respect that institutions operating under a system based on separation of powers must show to each other. The idea of courts stepping in whenever they think a country is not being run well enough may sound attractive to some but in the long run it spells nothing but disaster; most importantly for the courts itself. An inflation of orders hurts and never aids a court’s reputation.

The Honourable Supreme Court has given a fantastic amount of attention to matters under the NRO. Regrettably, the Court did not see its function as having ended with the decision on the petitions that were filed before it. It took it upon itself to carry out oversight of everything that it felt should have been done. Most controversial among this is the matter of writing to the Swiss authorities regarding cases involving the president.

There is no doubt that the president has immunity under our constitution. The argument made by Mr Aitzaz Ahsan that the provision regarding immunity should be seen as a constitutional command should have settled the matter. Whether or not the Executive wants to prosecute someone is and should be the Executive’s decision. You may not like it because your favorite pastime is talking about how corrupt Asif Zardari is but that is irrelevant for the purposes of a debate involving the constitution.

In recent orders on the issue, the Supreme Court has made reference to not just the constitution but also constitutionalism. The latter concept includes a set of practices that envisages restraints being placed on all institutions. By taking it upon itself to dictate what the Executive can or cannot do the apex court will not be aiding constitutionalism.

We cannot allow ourselves to be swayed by the arguments that if the Executive is not doing its job properly then the courts should step in to solve the problem. The courts’ job is to engage in judicial review of Executive’s actions in limited matters and not to dictate things. Surely we cannot argue, by the same logic, that if courts do not do their job properly then the Executive or the Legislature should be out convicting people? If the Executive fails in its job to prosecute someone then it will have to pay a price for that at the polls. And if the people do not think that it is important enough then you have to lump it even if you like throwing darts at Asif Zardari’s photo pinned to the back of your bedroom door.

There is also the issue of institutional morality and other burdens. The apex court has finite resources and a finite amount of time in which to take up cases. If the court is intent on showing that it can take on powerful interests, then the military establishment and petitions holding it accountable should top the list. Apart from that the backlog of cases is immense. Litigants should not have to bear the sight of an apex court according hearings to matters that excite the press while unglamorous matters get dragged on for years.

Questioning the PM’s violation of his oath could lead to some raising questions about the oaths and subsequent violations by justices of the Supreme Court as well. One lawyers’ movement was not and will never be enough to wipe away the blots on the Supreme Court and its history. The resulting discourse will be uncomfortable and ugly. Laws regarding contempt cannot always be used to save reputations, for reputations are more uncomfortably enduring. What precedent will the Supreme Court set by going after the PM? What hits will it take to its reputation when it is not consistent in its approach? And surely it cannot be consistent.

The talk of practicing law is always glamorous. But as all young lawyers learn after law school, the bulk of our work is done sitting behind a desk, poring over detail and spending long hours in courts over matters that do not make headlines. However, those matters affect the common man’s life far more directly than the matter of whether the Executive should write certain letters. You see, there is nothing glamorous about the rule of law and media frenzy is definitely not a part of it.

The writer is a Barrister and an Advocate of the High Courts. He is currently pursuing an LLM at a law school in the United States. He can be reached at [email protected]