Thursday, October 14, 2010

The Case for Judicial Minimalism in Pakistan

The Supreme Court and the High Court of Pakistan are badly in need of a lesson in judicial minimalism, according to Saroop Ijaz, advocate before the Lahore High Court in Pakistan, in a column this week in the Jurist.  Based on Ijaz's examples, he's right.  Among them:

Public Debate as Judicial Contempt

The Lahore High Court recently imposed a ban on Facebook, Youtube, and Google, among others, based on these sites' blasphemous content.  The ban was lifted, but the matter remains before the court.  As a result, according to Ijaz, "[a]ny [public] debate now carries the possibility of contempt proceedings, since it would be commenting on a [matter before the court]."  By intervening in the matter, the court cut-off a developing public discourse and kept the issues for itself.

The Constitutionality of a Constitutional Amendment

The Supreme Court is hearing a petition challenging the constitutionality of the 18th Amendment, which curbed the President's powers to unilaterally dissolve Parliament.  The petitioners' argument is that the court has the power to rule a constitutional amendment unconstitutional, if the amendment violates the basic structure of the constitution.  A long line of Supreme Court cases suggests that such questions should be left to Pakistanis themselves, but, Ijaz argues, the court's intervention suggests that it may be open to taking the issue out of the public sphere and ruling on it itself.

Suo Moto Jurisdiction

Pakistan's superior courts have authority to take up a matter on their own (without an Article III-like case or controversy, or, apparently, even a petition) on any matter in the public interest.  Most recently, the Lahore High Court's Divisional Bench set the price of sugar at 40 Pakistani Rupees per kilogram--a matter well outside the expertise of the judiciary and best suited for expert and political discourse.  The courts' suo moto jurisdiction means that the courts can take any issue in the public interest out of the public sphere and rule on it themselves.

Judicial minimalism says that courts should rule only on the narrow cases in front of them and leave the larger theoretical and policy issues to the political process.  Whether minimalism is the answer to Pakistan's judicial overreaching or not, these examples are extreme illustrations of why we in the U.S. take separation-of-powers and Article III case-and-controversy requirements so seriously.

SDS

http://lawprofessors.typepad.com/conlaw/2010/10/the-case-for-judicial-minimalism-in-pakistan.html

Comparative Constitutionalism, Courts and Judging, International, Separation of Powers | Permalink

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The courts, for their part, are attacking the government from two flanks – the Supreme Court is threatening to disqualify President Asif Zardari more than two years since his election, and the Lahore High Court – headed by Chief Justice Khawaja Sharif, an ardent supporter of the opposition Pakistan Muslim League – Nawaz (PML-N) – has reinstated an old corruption conviction against Interior Minister Rehman Malik, despite his having been pardoned in May. Ironically, the Chief Justice who is leading this assault on the government, Iftikhar Chaudhry, was himself the victim of extra-constitutional removal by then President and Chief of Army Staff Gen. Pervez Musharraf. Justice Chaudhry was released from detention by Pakistan’s newly elected government in 2008, and reinstated to the Supreme Court in 2009. Some believe that during the year between Justice Chaudhry’s release from detention and his reinstatement, the judge grew to resent the new government and has taken it upon himself to bring a myriad of legal challenges to its authority. In fact, many of the cases before the court were not brought by any individual or official agency, but were taken up “suo moto” – by the choosing of the Chief Justice, himself. Regardless of what is motivating the incessant attacks by members of Pakistan’s judiciary, the right to decide the nation’s leadership rests solely with the people of Pakistan. Military generals, religious clerics, and judicial appointees all have a role to play in the success of the nation. But each must work within the bounds of the constitution and the democratic process. Whether led by the military, the Taliban, or an army in black robes, a coup is a coup – and any coup will be devastating to Pakistan’s future.

Posted by: Sidra Khan | Oct 16, 2010 5:31:36 AM

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