Feisal Naqvi

Rule of Law v. Rule by Law

In Uncategorized on April 29, 2008 at 3:08 am

The Supreme Court of Pakistan has recently held that the graduation requirement for members of Parliament is unconstitutional. Since the Court has yet to release the detailed grounds for its judgement, an analysis of the merits of the decision is impossible. But there are many other things about the decision which can be discussed.

The first point to note is that opposition to the graduation requirement was led by the current Attorney General who vigorously, and publicly, denounced the requirement as “discriminatory”. In normal circumstances, Government lawyers vigorously defend all legislation, even when it is patently asinine. But in this case, the learned Attorney General opposed the law, even though that law had been validated by Parliament through a constitutional amendment and had already been upheld by a full bench of the Supreme Court. This newly found independence is truly admirable. One can only hope that the learned Attorney General remembers to be as independent and as solicitous of our rights when faced with other, equally tough cases.

A more interesting point with respect to the graduation decision was raised by my friend Clark Lombardi, currently visiting Pakistan on a research fellowship. He observed that while there is considerable talk in Pakistan of the “rule of law”, what one sees more in Pakistan is “rule by law”, i.e., the compulsion felt by our rulers to have their sins laundered through the judiciary.

The question then is this: is “rule by law” necessarily a bad thing? I am not so sure.

On the one hand, it is very clear that a judiciary which allows itself to rubber-stamp politically expedient choices divests itself of all legitimacy. At the end of the day, as per Dworkin, a judge or a court is entitled to respect only to the extent its decisions are based on, or consistent with, generally accepted principles of law and morality. Political expediency is certainly not a recognised ground for judicial decision-making. And the graduation decision, whether right or wrong, has certainly brought joy to Zardari House.

On the other hand, the fact that a judge should not make politically expedient decisions does not mean that a judge should operate in a vacuum. Law is not a platonic ideal to be adhered to irrespective of ground realities. Instead, it needs to be remembered that law is ultimately only a means to social ends.

The above argument certainly does not justify the Supreme Court’s latest decision. But it is very much something to consider when trying to determine how judges should decide cases.

Take, for example, the standard relationship between the Qazi and the Caliph. When the Caliph du jour had succeeded in making himself master of his domain, his first order of business was to obtain benediction from the local ulema. The relationship which therefore developed over centuries was one of extreme convenience in which the ulema rubberstamped all decisions of the Caliph in exchange for being allowed to preen in a gilded cage. The further consequence of this happy symbiosis was that Islamic law — as guarded and defined by the ulema — lost all contact with reality and became entirely an academic product.

Today, the consequences of this detachment are evident. Islamic scholars — whether liberal or fundamentalist — are all united in their belief that law is an abstract product, a platonic ideal: the fact that a law does not work or produces absurd consequences is simply irrelevant.

To take one concrete example of this detachment from reality, Justice Wajihuddin in the Aslam Khaki case noted that just because there was no historical precedent for an interest-free banking system did not mean that such a system could not work. In short, all the former Justice knew was that this was the way it was supposed to work: whether it actually did work was not his problem!

The point being made here is that judicial acknowledgment of political realities is not always a bad thing. In 1954, the United States Supreme Court held in the landmark case of Brown v. Board of Education that segregation was illegal and unconstitutional because separate could never mean equal. But having found that segregation was illegal, the Court did not proceed further to direct the complete desegregation of the US with immediate effect. Instead, the Court directed desegregation to proceed with “all deliberate speed”.

In today’s brave new world, the judiciary must shoulder a significant part of the burden of ensuring our collective survival. A judiciary which sees its role as providing convenient solutions to inconvenient problems is hardly worth respecting. But we forget at our peril that a judiciary which chooses to live in an ivory tower is not much better.

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