Policy by the Bar and the Bench

January 24, 2021

While some public interest petitions often legitimately seek the enforcement of fundamental consitutional rights, petitions seeking the enforcement of Principles of Policy are a problem

It is often interesting to map the trend of public interest litigation in Pakistani courts. Largely brought into the limelight by what is popularly called the “Chaudhry Court” today, the concept has only snowballed.

Recent trends of public interest cases include requesting judges to ban Valentine’s Day, or those challenging the coronavirus slogan or the vaccine policy. But, some causes are indeed noble and one is compelled to applaud lawyers for bringing them to the court’s attention. A recent judgment by the Lahore High Court on the waste of food, or another judgment by the same court on the rights of brick kiln workers are commendable for addressing key social issues.

Irrespective of the issues these petitions raise, one is always bound to ask: How much public interest litigation is too much?

The Constitution of Pakistan contains two separate chapters: on fundamental rights and then on principles of state policy. Fundamental rights in the Constitution can be interpreted and enforced by courts. In contrast, the principles of policy are at most, an aspirational code, enacted with the view to guide the state’s policymaking powers. There is no obligation upon the Executive to implement these principles. Therefore, for their aspirational nature, these principles are not justiciable and cannot be enforced as a matter of right before a court of law.

While some public interest petitions legitimately seek the enforcement of fundamental rights under the constitution, petitions seeking the enforcement of principles of policy are a problem.

When petitions request courts to interfere in policy matters that are exclusively in the government’s domain, they are in effect demanding jurists to devise policy on the state’s behalf. This is problematic on several levels: judges are unelected, they have no experience in devising state policy and they cannot unilaterally allocate resources for its enforcement. In essence, they cannot act as the state because that is not their mandate. Should the Judiciary choose to tread this path, it breaches the most fundamental tenet of a democratic regime: the separation of powers.

In any democracy, the manner in which the Executive enacts policy often entails a lengthy consultative process, where elected leaders convene to discuss the merits and demerits of its decisions before finally passing them. Perhaps this is why courts have largely been reluctant to interfere with government policies. However, recent trends allude to the contrary.

A few months ago, a court was petitioned to make learning of the Holy Quran mandatory in all public and private schools under Article 31 of the Constitution. Article 31 (2), also a principle of policy, directs the state to take measures insofar as possible to inter alia make teaching of the Holy Quran and Islamiat compulsory. Enforcement of this principle of policy itself not only requires a breadth of considerations which require not only large-scale stakeholder involvement including the religious clergy but also a proper calculation of how this decision may be enforced. Should courts have entertained such a petition?

Once we petition courts to enforce principles of policy and they entertain the requests, we are enabling a most dangerous pastime: judicial activism.

The phenomenon was evidenced in the “Chaudhry Court” and most recently during Justice Saqib Nisar’s tenure as chief justice. Both judges were notorious for “acting as the Executive in exercise of the court’s suo motu powers under the Constitution”. While some judges have exercised restraint in the past, many have used this power to interfere with the Executive’s powers. The latter category has not only used this newfound ability to order for the construction of dams but also to interfere in matters ranging from health to the type of salt citizens ought to use.

And there is no turning back from the decisions taken under judicial activism. These actions, taken by unelected individuals with no knowledge of the state’s resources or policymaking goals, cannot be questioned and they cannot remain unenforced. But despite acknowledging the harms of unbridled judicial powers, lawyers keep petitioning courts to devise policy and judges often entertain them.

Public interest petitions on the touchstone of the principles of policy make one thing clear: lawyers and judges are both complicit in the judicial activism we are so quick to criticise. There is a need to respect the democratic values that both our Bar and Bench rely on to function. While public interest petitions may be a short and swift claim to fame for many, we must always remember the implications associated therewith. Once we allow public interest petitions to be heard on any other ground than the fundamental rights contained in the Constitution, we open the floodgates for many Chaudhry and Nisar courts.

The writer is a lawyer. She tweets at @noorejazch

Policy by the Bar and the Bench