The Supreme Court’s short order on the president’s reference on Article 63A of the Constitution marks a significant turn in the ongoing political uncertainty in Pakistan. Many disappointed with the opinion, and perhaps overwhelmed by its consequences, questioned how the opinion of three Supreme Court judges on the interpretation of a constitutional provision could carry so much political weight. Another way of asking this question is: why is the Supreme Court’s opinion on the interpretation of a constitutional provision so significant?
The answer lies in the Supreme Court’s power of judicial review, which means that its interpretations of constitutional provisions can lead to the invalidation of legislative or executive actions that run contrary to its interpretation.
Judicial review is a very significant power, but it is not without its critics. It is premised on the notion that the Supreme Court is the most legitimate authority to decide whether other branches of the government are abiding by the Constitution. The power of judicial review was established in the United States in the early 19th century by the US Supreme Court, and other countries, including Pakistan, have adopted a similar approach.
Concern around the undemocratic nature of judicial review is even more pronounced when we consider the tremendous power of one individual – the Chief Justice of the Supreme Court – to form benches and assign judges to cases.
There are at least two related strands of criticism of judicial review: one is that it is fundamentally undemocratic; and second, that it encourages judicial overreach. Prominent constitutional theorists critical of judicial review, such as Jeremy Waldron and Mark Tushnet, assert that the Supreme Court is an unelected and unrepresentative branch of government. Therefore, to give it the power to review and invalidate actions by elected branches of government violates fundamental democratic principles.
Critics of judicial review emphasize that the superior judiciary tends to be drawn from elite sectors of society, and therefore they will promote elite interests. The great power of judicial review could be exercised by the Supreme Court in the service of powerful minority interests, and could even be used to undercut the executive or legislature when they take measures to serve broader constituencies.
This criticism based on the unrepresentative composition of the superior judiciary may well apply to Pakistan’s Supreme Court. There is a huge gender imbalance in the Supreme Court with only one woman judge. Concern around the undemocratic nature of judicial review is even more pronounced when we consider the tremendous power of one individual – the Chief Justice of the Supreme Court – to form benches and assign judges to cases. Add to this the fact that our superior judiciary is not accountable to the public or other branches of government, as it is the Supreme Judicial Council – comprised of senior judges – that has the power to investigate into judicial misconduct and remove judges of the Supreme Court and High Courts from office.
Critics assert that with this tremendous power of judicial review comes a very serious risk of judicial overreach. Judicial overreach may take the form of overly expansive readings or misreadings of the Constitution. According to the two dissenting judges, this risk was realized in the Supreme Court’s majority opinion on Article 63A of the Constitution. The dissenting judges stated that majority opinion amounts to “rewriting” provisions of the Constitution.
One important recommendation is to end the power of the Chief Justice to assign cases and form benches, and instead move towards an automated system for bench allocation.
Judicial overreach can also take the form of undermining legislative and executive action. The judiciary may invalidate executive policy decisions, or indeed create policies, based on subjective opinions rather than on constitutional grounds. Justice Mansoor Ali Shah articulated this concern clearly in his 2021 opinion overruling a decision of the Lahore high Court to ban sale of petrol to motorcyclists without helmets. Holding that this order amounts to law and policy making, Justice Mansoor Ali Shah stated:
“It is one thing for a judge to progressively interpret the law because of human rights considerations about which he has substantial information. It is quite another to change or ignore the law for economic or social or political reasons based on polycentric considerations beyond a judge’s expertise… Judicial overreach is transgressive as it transforms the judicial role of adjudication and interpretation of law to that of judicial legislation or judicial policy making.”
The concerns around judicial overreach raised in Pakistan support the call for some reforms that at least put some limit and structure to the power of judicial review. One important recommendation is to end the power of the Chief Justice to assign cases and form benches, and instead move towards an automated system for bench allocation. Another measure to seriously consider is to curtail the Supreme Court’s power of suo motu and perhaps remove it altogether. These limitations would serve to strengthen all institutions of the state, not least the judiciary itself, which will only gain more legitimacy if it is perceived to act with restraint.