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WHEN a group of people decides to play a sport, it must reach a consensus on the rules of the game. Those rules may or may not be optimal, but playing the sport remains possible if everyone, or at least a substantial majority, abides by them. Usually a neutral arbiter is assigned the task of upholding the rules.
In cricket, for instance, there are a couple of umpires on the pitch who are responsible for upholding the game’s rules. It would be against the rules, and plainly absurd, if midway through a game, the umpires determine that one team’s abysmal performance is a sufficient justification for them to bat and ball for that team in the greater interest of cricket and the spectators.
When Supreme Court justices, custodians of the Constitution and law, conclude that the legislative assemblies’ callousness in resolving pressing issues is reason enough for them to legislate, democratic norms are left in tatters. The legislature, whether national or provincial, has the prerogative of making law. These elected representatives bring to the table the interests of multiple and diverse constituencies. In theory, at least, this translates into multiple viewpoints, better informing the legislature before it reaches a conclusion on a policy matter.
However, in a situation where elected representatives display complete indifference towards an extremely pressing issue — such as whether at the current rate of expropriation a country’s fast depleting water resources can sustain its burgeoning population — the belief in the institution of parliament is undermined. If elected members are not committed to safeguarding their constituents’ interests (in this case, access to clean drinking water), it raises the question as to why parliament even exists. This observation is lent credence in light of the pervasive perception, often justified, that our politicians are primarily concerned with narrow self-interests, and who — in their entitlement — forget that they are essentially mere agents of their constituents.
What happens when umpires decide to also participate in the game?
In a democracy, however, if the electorate is aware that it is their elected representatives’ job to come up with policy solutions for, say, dealing with the problem of water scarcity, then they would expect results from these representatives. If the elected representatives continue to ignore the electorate, they do so at their own peril — the constituents will eventually vote them out.
This whole idea is short-circuited when the legislature is robbed of its prerogative of addressing society’s policy-related predicaments. An unelected institution, for instance, instead of letting the elected representatives resolve the issue of water scarcity, may interpose itself, with its own solutions. In its decision rendered on Dec 6, 2018, the Supreme Court under former chief justice Saqib Nisar levied a tax on the bottling industry, commandeered the provinces to legislate on the issue of taxing industries extracting water, and instituted an implementation bench to oversee the collection of taxes. Review petitions have been filed against the decision, but, meanwhile, taxes have been collected from the bottling companies without any actual legislation levying such a tax.
In the rules laid down by the Constitution, judges are not meant to perform the functions of the legislature or the executive. They are not elected by popular vote; therefore, they do not have the moral legitimacy to bind private citizens and industries, either by creating a law themselves or by directing an elected body to enact a law. They are also not tasked with the implementation of laws and, therefore, an implementation bench created for the purpose of enforcing a tax in the abovementioned Supreme Court decision is probably a constitutional aberration.
The judiciary is primarily created for three purposes — (i) it interprets the law created by popular will; (ii) it resolves controversies, acting as a neutral arbiter between conflicting parties. At times, the parties could be the elected government, which drafts the laws, personnel from the executive that execute the laws, and the general populace which, in turn, is bound by the laws. And (iii) it safeguards the rights of the population in a polity, especially of minorities, whose will is not necessarily reflected in the laws created by the majority. Even a much-needed piece of legislation that does not come from the provincial or national assemblies but rather from the judiciary undermines the whole structure of governance.
The Constitution and laws created under it are the rules that govern our society. When the assigned neutral arbiters, however, decide to arbitrarily change the rules and get themselves involved in governance, in ways completely different from what the rules dictate, it only results in the people’s loss of faith in the rule of law.
The writer is a lawyer.
Published in Dawn, December 10th, 2019
