Role of Judiciary in Constitution Making in Pakistan

Part 1: Why Democracy?

Part 2: Role of Judiciary in Constitution Making in Pakistan

Part 1: Why Democracy?

There are two kinds of people in the world today: one who thinks that democracy is a cure for all
ills and those who argue that there are no logical foundations for democracy. The second kind of
people, however, can only be found in economics and public choice departments. Rightly so as
normal people who hold arguments against democracy are seen with suspicion. The most popular
argument for authoritarian rule was made by economist, Mancur Olson.
Olson argued that a monarch, as residual claimant of the wealth of a country, will have an
‘encompassing interest’ in protecting all the residents of the state as long as they contribute towards
increasing the total revenue of the state. Monarchies are however different from dictatorships and
other forms of authoritarian rule. Monarchs know that they are here to stay and when they die
somebody from their lineage will take over. So effectively the time horizon is unlimited. A
monarch achieves to maximize residual revenue of the state over unlimited time period. As a result,
provides public goods that will be productive over the years (e.g. education, public health, food).
On the other hand, dictatorships which are subject to a limited and unsure time horizon tend to be
more exploitative.
Other than Olson, there are a number of theoretical arguments against democracy. Another well
known argument is presented by Kenneth Arrow. He argued that when there are more than two
alternatives, majority voting (one way democracy is exercised; majority voting is sometimes used
synonymously with democracy that is a blatant mistake) results in cyclical voting. Other theorists
have argued (e.g. Congleton) that cultural pre-requisites to democracy are essential for democracy
to work.
Despite widespread theoretical argument against the stability of democracy, never in the world has
democracy prevailed before as it prevails today. Almost half of the world’s population is living
under one or the other form of democracy. Interestingly, however, no one seems to have a
convincing argument for it.
The most powerful argument for democracy that I have come across is by Amartya Sen, surprising
as it may seem. His explanation of famines in Bangladesh makes clear the importance of ‘voice’
or ‘representation’ of each and every individual in the society in the decision making process at
administrative/governance levels. Very simply stated, he argued, that it is not the supply of food
but its distribution, controlled by the government, which is at fault. The supply of food in any
country where famine has occurred, did not fall to a point that some people have to go hungry.
Some specific areas, however, may lack food supply. The government could have simply dumped
the supplies in that area to lower the price of food and make it available to everyone. The reason
government did not follow this solution was that the government did not have any incentive to do
so. A democratic government, facing elections, opposition parties and independent newspapers,
cannot help but make such an effort. The structure of democracy, through elections, opposition
and independent press, makes sure that everyone gets representation at the administrative level.
Sen’s view of democracy, thus, makes the efforts of empirical economists who try to measure the
effect of governance on development redundant, as democracy is a pre-requisite for any
meaningful development.
Theoretically the argument makes sense but in reality it is virtually impossible to create an
effective representative democracy. US, one of the oldest democracies in the world, has not been
able to achieve the objectives of democracy. The way US constituencies are defined leave a lot of
room for political manipulation. There is a clear division between the staunch ‘red’ and ‘blue’
states. The result of this is the New Orleans in the wake of Katrina where one sees primarily the
black communities left homeless or the fact that in some parts of Georgia, majority of the African
American population did not have access to clean water in the 1980s in the most developed country
in the world.
Concluding the above arguments, all forms of authoritarian governments are revenue maximizing
while democratic government, by design, has to maximize social welfare of all the
groups/individuals. The preference of democracy over other forms of government, therefore,
depends on the underlying preferences of the people. Revenue maximization under authoritarian
government, for example, may lead to trickle down and increase welfare of the society overall. Or
it may lead to social unrest and overthrow of the dictatorship.
Part 2: Role of Judiciary in Constitution Making in Pakistan
Since at least the time of Alexander Hamilton (Federalist No. 78), most legal commentators have
shared the conception of the judiciary as standing apart from and limiting the scope and
intrusiveness of the political process. Buchanan, Knight, Hayek and Tocqueville are few among
many philosophers and political theorists who have maintained that the primary role of judiciary
is to enforce the constitutional contract and to arbitrate disputes among citizens over its content .
In the words of James Buchanan:
“Ideally, courts interpret and enforce the rules, both for private parties and for legislative and
executive branches of government…I want an independent judiciary to enforce the rules that exist,
however these might have emerged. I want this judiciary to restrict the actions of legislative bodies
and administrative agencies then try to modify these rules when they are not legitimately
empowered to do so…I want courts once again to take a hard look at the constitutionality of
legislative and executive actions, but in terms of the existing rules of the game, and not in terms
of the judges’ own social or ethical ideals” (Buchanan, The Independent Judiciary in an Interest
Group Perspective: Comment, JLE)
The constitutional theory has, however, ignored the pre-constitutional role of judiciary. The scope
and consequences of Judiciary’s role in constitution making processes have been different in
different nations but judiciary has, nonetheless, played an important role in defining the structure
of the state. Apart from settling the disputes between the judiciary and either of the other two
branches of government (legislature and executive), the judiciary is also assigned the responsibility
for arbitrating constitutional disputes (Mueller). This role of judiciary implies that it will have to
arbitrate disputes in which it is one of the parties in conflict. This does not only raise question of
judiciary’s incentives but also highlights an important function that has not been emphasized in
theory.
Both in US and Pakistan, judiciary has dealt with important questions and their decisions have
been consequential for the state structure. In US, Marbury v. Madison (1803), Marbury v. Ames
have been important cases for the relations between polity and court in US. Courts have also raised
and settled the doctrine of Political Question. However, the US Court has limited its role in
structuring the state and has been hesitant even to use its power of judicial review in the modern
state (Pfiffner, 1995).
The role of judiciary in Pakistan, however, has been much more participatory. The courts have
allowed discussions of executive behavior and have decided conflicts between citizens and the
state when the government is not empowered by the citizenry. The Pakistani courts have discussed
the breadth of executive powers, the natures of rights, the ideological cum religious basis of the
state and prospects for representative, democratic governance. The courts have played important
role whenever the state has faced the problem of political reorganization and political legitimacy.
The judiciary has often practiced law without the benefit of a constitution, approximating its
functions when no document existed and thus in the process have created new constitutional
instruments (Newberg, 1995). “For the courts, judicial review has often meant creating a
constitution” (Newberg, 1995, p: 248).
Themain quest right now is to examine the role of judiciary in Pakistani constitution making and
to analyze the reasons for an extensive role. Has judiciary primarily acted as an executive
instrument assisting it to legitimize its rule and its role in state building has simply been an off
shoot of that? Or has judiciary consciously, voluntarily and directly been involved in state
structuring by providing a limited space for public voice and reacting to the need for political
change by civil society? Has the unique political and social situation of Pakistan lent itself to an
extensive role of judiciary? Is Judiciary the appropriate platform for redefining the
ideology/structure of the state? What are the ramifications of judiciary’s involvement for
constitutional democracy? The ultimate question is, what, in the present state, has emerged from
court rulings and what was the pre-constitutional consensus (if there was any)? If the courts seek
political distance, how can state institutions be instructed to change? If the courts themselves
decide what is justiciable and what is not then where, finally, does the sovereignty lie?