Writing about an issue as touchy as this, one must start with a few disclaimers. Water is a necessity and access to it must be seen as a subset of a citizen’s right to life. Pakistan has a water crisis that needs to be addressed on a war footing. There is no gainsaying that those throwing their weight behind the Dam Project, like the chief justice, are driven by the honest belief that doing so is in the best interest of Pakistan and its people. One can impute no ill motives to the CJ (or the PM) for seeking donations, and must commend citizens contributing generously.
The issue here is not whether Diamer-Bhasha is a worthy project that ought to be pursued or whether funding for large infrastructure projects can be crowd-funded (already addressed by some, including Khurram Husain). What is being broached here is whether it is the judiciary’s business to sponsor an infrastructure project and oversee its execution, and whether our jurisprudence backs how the CJ has chosen to pursue this lofty objective. The intent is to provide constructive criticism and not to undermine the court’s sanctity or cause any affront.
Article 184(3) empowers the SC to pass such orders that high courts can pass under Article 199 in relation to matters of public importance involving enforcement of fundamental rights, and it can also take suo-motu action without an aggrieved person petitioning the court. Without getting into the question of whether these powers vest in the SC or the office of the CJ, the first question is: can the SC make policy choices in exercise of 184(3) powers? Much has been written, especially by Dworkin, about the distinction between decisions driven by principles versus those driven by policy.
There are two related questions here. What do judges do and how do they do it? Do judges make the law or do they interpret and enforce it? If they do the former, they enter the domain of the legislature. If they don’t, can they make policy choices on behalf of lawmakers or the executive under the garb of interpreting and enforcing the law? Dworkin argued that judges don’t have hard discretion like legislators or the executive. Arguing otherwise falls foul of the doctrine of separation of powers, as judges would be making the law and not interpreting it.
Dworkin argued that the law recognises individual rights to be upheld as a matter of principle. The strategy that a government adopts to discharge its obligation to uphold rights is a matter of policy. Principles can be weighed and balanced (as is done by courts in case of competing rights). Policies have an all-or-nothing character. In deciding cases courts are guided by considerations of principle and not those of policy, which is why courts focus on upholding rights and refuse to second-guess policy choices to be made by the executive to uphold them.
In this framework, citizens’ right to water would be the matter of principle that is to be upheld by the state. Whether this is done by building large dams or small or by harvesting rainwater or by replenishing aquifers or by preventing seepage through canals or by taxing water to prevent waste or by doing all these things simultaneously would be a matter of policy. By deciding that citizens’ right to water is to be upheld by making large dams, financing for which will be sought through donations and overseen by the SC, it has forced a policy choice on the state. Anyone opposing this policy choice could be held in contempt of court.
The CJ was part of a SC bench that decided the matter of Cutting of Trees For Canal Widening Project (2011 SCMR 1743). The court held that, “Many a time, policies/actions of executive authorities are challenged and issues brought before the court which have socio-political or economic dimensions; issues of lopsided policies being pursued…issues which reflect immoral or unwise use of public funds. Judges are humans. It is painful to sit back and watch successive marches of folly. However, the constitutional constraint reflected in the trichotomy of powers obliges the court to observe judicial restraint”.
It quoted with approval the US Supreme Court’s decision in Trop v Dulles: “It is not easy to stand aloof and allow want of wisdom to prevail, to disregard one’s own strongly-held view of what is wise in the conduct of affairs. But it is not the business of this court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the court giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the constitution has not authorised the judges to sit in judgment on the wisdom of what Congress and the executive branch do.”
It also cited with approval the Indian SC’s decision in Narmada Bachao Andolan (AIR 2000 SC 3751): “Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed are part of [the] policymaking process and the courts are ill equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people’s fundamental rights are not transgressed upon except to the extent permissible under the constitution.”
The Dam Project raises foundational issues about our constitutional structure and separation of powers. In a democratic polity, who has the mandate to make policy choices on behalf of the people? The best argument in favour of the CJ’s Dam Project is that the SC has been forced to step in due to the executive’s failure. Even if this is logical reasoning, is it a cogent legal argument? Can the SC read the vacuum theory (ie necessity of unelected institutions stepping into the province of the elected due to failure of the latter) into Article 184(3) to enhance its own powers?
The CJ is on record saying that it is not for judges to build dams or collect money for them. He is also on record reiterating how passionate he is about the project. This creates ancillary issues. When the executive makes a policy choice such that a citizen’s rights are breached, the aggrieved person has recourse to the court. But where the court makes a choice and oversees its execution, what remedy does an aggrieved person have? Let’s assume someone has seismic or ecological concerns regarding the project. Will he have complete confidence that the court will not be pro-project as a starting point?
The federal government and the army have contributed employee salaries to the Dam Fund. Isn’t philanthropy meant to be voluntary? Did these state employees voluntarily contribute salaries? The issue is one of principle and not quantum of contribution. Can an employer volunteer contribution on behalf of an employee for compensation payable to him/her? Does anyone aggrieved by such decision have remedy, especially in today’s environment where anyone second-guessing the viability or desirability of the Dam Project is seen as a traitor to a national cause?
The SC recently fined the PTI’s Imran Shah Rs3 million and ordered him to deposit the amount in the dam fund (to teach him a lesson for assaulting a citizen). It would be one thing for the SC to order that the MPA be prosecuted in accordance with the PPC. But what is the statutory basis for the fine and its diversion to the dam fund? And does it not raise a perception of conflict? The SC is appealing to all to contribute to the dam fund. And here it takes cognizance of a matter via suo motu, slaps a hefty fine and then orders that it be deposited into the fund for its sponsored project.
As a student of law, one approaches these issues with humility to contribute to the larger debate regarding the scope of the SC’s 184(3) powers now that it has decided to adjudicate the matter. (And the disclaimers are partly driven by a sense of self-preservation given the CJ’s warning that critics of the dam will be taken to task). The question thus remains, as an institution with enumerated powers (Article 175(2) says “No court shall have any jurisdiction save as is or maybe conferred on it by the constitution or by or under any law”), wherefrom does the SC derive the power to sponsor the Dam Project?
The writer is a lawyer based in Islamabad.
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