RECENT interventions made by the Supreme Court in pandemic-related government policy offer a glimpse into the court’s understanding of its role in these times; one it may be drawing from a past that does not call for re-enactment.
On May 18, a five-member bench of the Supreme Court hearing a suo motu case on measures taken to deal with the coronavirus crisis directed the Sindh government to seek approval for the opening of shopping malls in the province, and proceeded to set aside the decision to enforce a countrywide lockdown of shops, markets and businesses on weekends, as being unconstitutional.
These interventions, which reinforce the centre-led push to ease the lockdown, drew a mixed response, heavily skewed along party lines. But when all is said and done, the interventions are of an incremental and circumspect nature, especially when compared with those that the court had sought to make in April, including a push to open OPD wards in hospitals across the country. As pointed out by the bench on May 19, neither small markets nor the large malls were being opened on account of the court’s orders, the decisions to do so having already been reached by the various governments.
But if the order of May 18 is to be viewed as a light-touch intervention, or simply as a rationalisation of policy across the country, it begs the question: ‘Why intervene at all?’ Has the threshold of “questions of public importance with reference to the enforcement of the fundamental rights” been watered-down to such an extent that it now accommodates one’s individual right to indulge in weekend leisure activity at a mall, in the midst of a global pandemic? Or is it simply naïve to think that the textual underpinnings of the court’s suo motu powers have more weight than the paper on which they are printed?
Suo motu interventions have altered perceptions of the judiciary.
Or might these tepid yet highly visible interventions be early signs of the latest iteration of a court which has since the days of Iftikhar Chaudhry shaken off its traditional moorings and set off in search of wrongs that it may right; no matter how seemingly inconsequential they may be, even in the court’s own eyes?
To elaborate, the Supreme Court’s suo motu interventions have over time altered public perceptions of the judicial branch, and its sources of legitimacy. The very act of choosing what to take suo motu notice of can be viewed as an expression of interest; which has implications for an institution historically perceived as a disinterested dispenser of justice. Though the predilections of individual chief justices may shape the manner and frequency of the use of suo motu powers, it would appear that meeting the public’s gaze and expectations has helped cast the superior judiciary in a new irresistible mould: the judge as saviour and protector of the masses from the ‘mess and menace of politics’. Though the court’s past forays into a form of inquisitorial justice have by and large met with popular approval, overexposure to the fickle world of public opinion, aside from guaranteeing diminishing returns, has the potential of undercutting the traditional roots of judicial power within our democratic order.
While the recent interventions may fit neatly into the centre-led push for a loosening of restrictions — shielding them from criticism or even eliciting plaudits from some quarters — they disclose an alarming misconception as to what the court’s role ought to be in such times. Democratic constitutions, including our own, envisage a distribution of power and division of labour amongst the several branches of government, with checks and balances meant to shield each branch from the invasive tendencies of the others; but without threatening the overarching goal of the Constitution: integrating these branches into a workable government. In some contexts, this will play out in a supervisory manner where the aim is to check and hold the other to account. At other times, the branches will engage cooperatively to support each other’s role in the joint endeavour.
It goes without saying that the current context screams out for the latter approach. It calls for a respect for inter-institutional jurisdiction and an understanding of where and when the other institutions (both federal and provincial) are better placed to make a decision or carry out a task.
Suo motu notices (by their very nature) are not taken out of such respect; and non-technical interventions, no matter how well-meaning, will not aid in formulating an effective response to the ongoing crisis. In the worst-case scenario, they may put the lives of health professionals and the general public at risk. On all counts, they undermine the enterprise of democratic government which our Constitution enjoins the organs of the state to assist one another in undertaking.
In these times, the Supreme Court might do well to direct its probing gaze inward and consider structuring its more discretionary powers; and wielding them with greater restraint.
The writer is a lawyer.
Published in Dawn, June 1st, 2020