THE memo matter before the Supreme Court (SC) has generated a flurry of Op-Ed pieces based on exaggerating the distance between the strictly legal and the strictly political. Placing the exercise of judicial power in perspective might be useful.

The power to interpret and apply the constitution available to the superior judiciary in many countries of the world makes the judiciary a participant, often decisively so, in the social and political development of these countries. The judiciary participates not as a distant oracle of the law handing out judgments aimed at implementing some objectively verifiable rule of law project. Court judgments respond to and affect the milieu in which they appear.

Judgments that address debates around values and principles are ultimately accepted, even if grudgingly so by one side to the debate, as permissible judicial interventions. Such judgments convert the political projects of one generation into judicially enforceable legal norms of another, leaving the boundary between the strictly legal and the meta-legal a contested frontier.

On the other hand, judgments that appear to promote one side over the other in a struggle for power are rarely accepted by history as legitimate exercise of judicial power. Compare, for instance, the reception received by the US Supreme Court’s support for abortion as a matter of principle in Roe v Wade in 1972 with the reaction to its election-clinching decision in Bush v Gore in 2000.

Closer to home, judgments dealing with the dissolution of assemblies under Article 58(2)(b) of the constitution, from Haji Saifullah’s case (1989) to Benazir Bhutto’s case (1996), are now generally seen by the legal profession as instruments effecting regime change with at least tacit collaboration between the ‘establishment’ and the judiciary. This also holds for the cases legitimising military coups from Dosso’s case (1958) to Zafar Ali Shah’s case (2000).

The act of legitimately interpreting the constitution, as opposed to instrumentally sanctioning regime change, is not an archaeological exercise in unearthing the original intent of the drafters of the constitutional text. Nor is it simply a matter of looking up dictionaries to assign meaning to words. Given the open-ended scope of the values embedded in the text of the constitution, in implementing the constitution the judiciary inescapably weds the text to the social and political vision of the members of the bench. More often than not, it is this vision that dominates the text.

Consider, for instance, the development of jurisprudence in the United States with respect to the equality clause of the US constitution. It is no secret that many, if not most, of the ‘founding fathers’ who participated in the drafting of the US constitution in the 1770s were, and remained, slave owners. It is reasonable to presume that they could not have intended by the language of the US constitution regarding equality to prohibit slavery or segregation of the races.

This is indeed how the equality clause of the US constitution was interpreted by generations of Supreme Court justices, both before and after the civil war of the 1860s.

What changed in the years after that, with slavery being declared unconstitutional in the 1870s and school and public transport segregation being disallowed by the US Supreme Court in the 1950s and the 1960s, was not the text of the constitution but the worldview of the judges inhabiting the US Supreme Court and the socio-political forces swirling around it. The movement against racial discrimination, viewed as an extra-legal project in the 1940s, has in the ensuing decades come to be seen as the core of the rule of law project in the United States.

The interplay between the political and the legal in superior court interpretation of the law inevitably causes tension between the judiciary on the one hand and majorities in the populace and the legislature that subscribe to political and social narratives different from those of the majority on the bench.

Given that the members of the superior judiciary are themselves unelected and not answerable to anyone for the views that they assert through the power to interpret, modern constitutionalism has bred in its realm what is referred to in jurisprudential literature as the ‘counter-majoritarian problem’. Democracy and its representative institutions, the executive and the legislature, must coexist in a state of tense obedience with the counter-majoritarian power of the superior judiciary.

The exercise of this power is for the good and intended by most constitutions when used to empower the weak, who have no hope of succeeding through democratic channels, against the dominant. It becomes oppressive when used to empower the already dominant. This was the essence of president Roosevelt’s charge against the US Supreme Court in the 1930s, forcing the court to give up its support of the propertied and business classes in the name of substantive due process against the progressivism of the New Deal.

Superior judiciaries around the world have themselves recognised and responded to the ‘counter-majoritarian problem’ by adopting a posture of judicial restraint and respect when faced with non-judicial, representative channels of decision-making within the constitutional framework. Jurisdiction is not exercised only because it is possessed. It is assumed when considered wise to do so.

The career of the US Supreme Court since its confrontation with Roosevelt can be characterised as an attempt to open up and deepen the channels of democratic deliberation and contest provided by the constitution. Hence the focus on equality of opportunity, freedom of speech and fairness in the delimitation of electoral constituencies.

The charge of impeachable misconduct against president Nixon in the early 1970s put the US Supreme Court’s deference to the decision-making authority of coordinate representative institutions of the state to the test. The extent of the privilege claimed by the president had to be assessed. While the Supreme Court refrained from judicialising the possible impeachment it insisted that the president cooperate fully with the investigation sanctioned by the attorney general under the authority of Congress.

The memo matter raises issues of far greater complexity and import than Watergate. Nixon was accused of authorising trespass and theft of documents from the Democratic Party office. The issue here is treason. Treason, unlike trespass and theft, can lie in the eye of the beholder. Who should behold and who should initiate the process that can lead to consequences more grave than the demise of a presidency?

The writer is an advocate of the Supreme Court.

salman.raja.zir@gmail.com