APROPOS the article ‘Supreme Court & democracy’ (Jan 16). The writer has aptly touched upon the judiciary’s role in the complex structure of the constitution. I feel our politicians themselves weaken democracy by asking the judiciary to wash the dirty linen of their disputes.

Our politicians should refresh their memories by what Justice Muhammad Munir said shortly before pronouncing his verdict in the Dosso case: “when politics enters the portals of justice, democracy, its cherished inmate, walks out by the backdoor.”

The kingpins in various institutions should not forget French jurist Jean Bodin’s dictum: majesta est summa in civas ac sub ditoe slegibusque salute potestas which translated means: ‘highest power over citizens and subjects unrestrained by law’.

Bodin explained that power resides with whosoever has ‘power to coerce’. It does not reside with the electorate, parliament, judiciary or even constitution. In the past, our bureaucrats, judges, politicos, and even praetorian rulers fought tooth and nail to prove that le pouvoir belonged to them.

When a judiciary ousts or overakes parliament and executive, the question (in a Latin quip) that arises: quis custodiet ipsos custodies? who will guard the guardians?

What are the limits to judges’ le pouvoir? Justice Benjamin N. Cardozo (1921), in his lecture on the nature of the judicial process, answers “Judges have, of course, the power, though not the right, to ignore the mandate of a statute, and render judgment in despite of it.

They have the power, though not the right, to travel beyond the walls of the interstices, the bounds set to judicial innovation by precedent and custom. Nonetheless, by that abuse of power, they violate the law.”

Theoretically, the people hold ‘power’ to account. But the ‘people’ are an amorphous lot without a legal identity like an institution, except as ‘voter’ during elections.

Elected representatives (power) are under the delusion that they are superior to all unelected institutions. But the representatives should exercise their authority under Allah’s authority within bounds of our constitution. The courts are guards over brute power and authority of the guardians (government). In so doing the courts are ‘quite untouchable by the legislature or the executive in the performance of its duty’ (Harilal Kania, India’s first chief justice).

The principle of due process has virtually been consigned to the rubbish bin.

Ahmed Jamil Mashadi

Islamabad

Published in Dawn, January 18th, 2019