The Rule of Law in a Transitional Democracy

Introduction

Since it joined the Canadian federation in 1870, the Province of Manitoba enacted all its laws in English only. In 1985, the Supreme Court of Canada was asked to rule as to whether all these laws violated the constitutional requirement that the laws of Canada, and of the provinces of Quebec and Manitoba be enacted, printed and published in both English and French. (Re Manitoba Language Rights, [1985] 1 S.C.R.721)The Court ruled that the constitutional requirement of bilingualism was mandatory and that therefore all the laws of Manitoba enacted in English only were and had always been invalid and of no force or effect. However, the court in effect suspended its declaration of invalidity and deemed the current Acts of the Manitoba Legislature to have temporary force and effect for the minimum period of time necessary for their translation, re-enactment, printing and publication.

Having concluded that it had to declare all the laws of Manitoba unconstitutional and invalid the court said this:

“This declaration, however, without more, would create a legal vacuum with consequent legal chaos in the Province of Manitoba….The constitutional principle of the rule of law would be violated by these consequences…. The principle of the rule of law, recognized in the Constitution Acts of 1867 and 1982, has always been a fundamental principle of the Canadian constitutional order. The rule of law requires the creation and maintenance of an actual order of positive laws to govern society. … It is therefore necessary, in order to preserve the rule of law, to deem temporarily valid and effective the Acts of the Manitoba Legislature, which would be currently in force were it not for their constitutional defects.”

My purpose in coming all the way to Lahore to talk to you about the constitutional defects in the laws of Manitoba is to explore with you the requirements of the rule of law in the fashioning of constitutional responses and remedies in the delicate interplay between the judicial and legislative branches of governance. In other words, what does the rule of law teach us about the need to uphold the letter of the constitution while remaining true to its basic principles?

This case is also a glaring example of the unhelpful nature of terms such as “judicial activism”. Was the Supreme Court of Canada “activist” in creating a novel remedy to avoid the chaos created by constitutional noncompliance? Would proper judicial restraint and deference to the legislative branch have required the Court to do no more than declare that Manitoba had no effective laws? Would having let chaos prevail not have been a form of judicial activism?

I suggest to you that it is more useful to examine how courts comply with the often competing requirements inherent in the notion of constitutionalism: respect for the letter and spirit of the constitution; preservation of fundamental rights; proper deference to other branches of governance; enhancement of peace and order; as well as respect for all state institutions.

In turning to the rule of law to create a legal remedy to a governance crisis, the Supreme Court of Canada, in the Manitoba case, provided a practical, persuasive way of upholding strict constitutional requirements, but in a manner that was as deferential to the legislative branch as it could afford to be.

In other words, without surrendering any of its judicial powers as a guardian of the constitution, the court acted as a true partner in governance in service of the public good, and came out of the process with its legitimacy and credibility enhanced, and its relationship with the legislature expressed in terms of dialogue rather than confrontation.

The Rule of Law and the Role of Courts in Developing Democracies

In its 2011 World Development Report on development and security, the World Bank pointed to an obvious but often overlooked reality: it takes decades to build and consolidate institutions. In the process of doing so, progress is made, stagnation occurs and regress at times happens.

This is probably even more so in societies transiting towards the durable construction and consolidation of democracy. In that process, emphasis is often put both by national actors and their external supporters on the most pressing features of a functioning democracy: the enactment of a constitution and the periodic holding of elections. While these processes are indispensable they overshadow the more complex requirements of the establishment of the rule of law.

First, we need some clarity about the fundamental features of the rule of law. There is a lot more to it than police, courts and prisons. The prevalent understanding of the concept of the rule of law is an impoverished one, reduced to ‘rule by law’ or, more simply, law enforcement. In addition to replacing human arbitrariness and the exercise of power by force, properly understood the rule of law is a fundamental principle that asserts equality before and under the law, and the entitlement of all to equal protection and equal benefit of the law.

As evidenced in the Manitoba case, the rule of law is also not simply a set of procedural requirements for the proper enactment of legislation. These requirements are well known: laws must be of general application, properly promulgated, clear, non-retroactive, and capable of compliance. Importantly there has to be a credible and legitimate adjudicator of the validity of laws and of their proper interpretation and application.

Courts, therefore, are guardians of the rule of law as well as of the constitution, and in discharging that function they themselves must comply with its fundamental assumption that the law is at the service of democracy, fundamental rights, social peace and security and the advancement of the greater freedom for all.

As democracies mature – particularly under constitutional models with entrenched Bill of Rights guarantees – laws, and the role of courts, become more prominent and even lead to what some denounce as the legalization of politics. We have seen this in Canada for instance, since the 1982 Canadian Charter of Rights and Freedoms. We have seen this unfolding in South Africa too, as the Constitutional Court has risen to occupy its proper place in constitutional adjudication.

Courts are then inevitably drawn into adjudication of issues that have political impact and tensions often surface between the three branches of governance. As the judiciary broadens its reach from arbiter of mere private disputes to broader controversies about the interpretation of the law and the scope of constitutional provisions, it risks putting its own credibility and legitimacy in the marketplace of public debate. This risk is real, and judges must be aware of the need to secure and maintain their unique place as one of the three pillars of governance, unelected but trusted, more in their institutional rather than in their personal capacity.

This they must do by finding the appropriate balance between socalled “judicial activism” and “judicial restraint”. Let me stress that this is not a question of rendering opinions that are popular. The real challenge for courts is to maintain the public trust even when they render decisions that may disappoint a large segment of the public or of the political classes.

Adjudication, as opposed to mediation, implies disappointment. But the acceptance of the result has a lot to do with the confidence that the parties and the public have in the integrity of the courts and in the wisdom of their decision. That wisdom requires a contextual approach and an effort to avoid the undue polarization that comes with combative language and unyielding positions. Above all it requires not slavish application of black letter law but, when it is required, a creative approach, whether it is active or restrained, that best serves the values of constitutionalism and democratic governance.

This challenge is not unique to Pakistan, or to other countries emerging from authoritarianism and absolute executive power. The Supreme Court of the United States was said to be at a low point in public confidence as it deliberated on one of the most contentious issues in the upcoming US elections: the constitutional validity of President Obama’s signature health care reform. According to polls, only 44% of Americans approve of the performance of the court, down from 50% in 2000, and 66% in the eighties (IHT, 7 June 2012). In my view, the court’s decision released at the end of June is likely to contribute to the restoration of confidence in the court, despite the fact that in upholding most of the so called Obamacare legislation, the court went against the trend in public opinion. But in a court that is perceived as polarized between liberal (democrats) and conservative (republicans) judges who tend to rule in accordance with their political ideology, the surprise was the position taken by Chief Justice Roberts, a republican appointee who usually joined his conservative colleagues. In this case he did not and voted to uphold the health care legislation on the basis of a narrow legal analysis of the case from a tax perspective.

The IHT editorial (Friday, June 29 2012) had this to say:

“Chief Justice Roberts could have ignored this narrow solution and joined the four conservatives in striking down the entire law. Instead, he demonstrated caution and followed the principle of reasonably construing legislation to save it from unconstitutionality – qualities which have long been considered central to judicial legitimacy.”

A recent ruling by the Egyptian Supreme Constitutional Court, on 14 June, was contentious too. Just days before the run-off in the presidential elections, it ruled that Parliament – the first legislature elected democratically in Egypt’s history – should be immediately dissolved due to inconsistencies between the constitution and provisions in the new elections law which govern how a third of its members were elected. At the same time it ruled that Mubarak’s last prime minister could run for president. Along with constitutional reforms which gave the Egyptian military greater powers, these rulings have been described by some as “the smoothest military coup” (IHT, 15 June 15). In such a case, the question is both whether democracy can survive such a setback, and also whether the courts can maintain or perhaps even regain the legitimacy upon which their authority rests.

Separation of Powers and Judicial Oversight

The hallmark of a mature democracy is the proper functioning of the checks and balances between the three branches of governance. Whether emerging from civil conflict, authoritarianism or even state collapse, new democracies must construct three independent but overlapping branches of governance, and ensure that each functions to the fullest of its authority, without usurping the other branch’s jurisdiction.

Of course some overlap exists between the activities of each branch: the executive legislates, to some extent, when it enacts rules and regulations; the judiciary also can be said to legislate when it interprets the laws enacted by Parliament; the legislature exercises some judicial function, for example in disciplining its members; and the judges have some executive powers when they issue enforceable orders. As long as these activities are subsidiary to their core function, this overlap doesn’t offend the basic principle of separation of powers and doesn’t threaten the democratic enterprise.

It is of course the constitution that regulates the proper sphere of activities of the three branches of governance, and it falls on the judiciary to determine whether each branch has acted within the limits of its constitutional authority. To the extent that the judiciary is thus entrusted with being the ultimate arbiter of its own competence, it must be the subject of intense public scrutiny to ensure that it overcomes the apparent conflict of interest that comes with this privileged position.

The only rationale for vesting judges with this authority to adjudicate on the scope of their own authority as well as that of the legislature and the executive is trust in their professional competence, independence, impartiality and non-political agenda. The more apparently self-serving their decision, the less deference they show to the legislature or to the executive, the more suspect their ruling will be. This is not a reason to be unduly circumspect, but is certainly cause to ensure that apparently self-serving decisions are demonstrably sound on a legal basis, absolutely the product of due process to reflect full impartiality, and obviously non-attributable to partisan political views.

In the grey zone of the adjudication of separation of powers issues, judicial interpretation cannot afford to rest on a narrow reading of relevant texts, whether statutory or even constitutional. The court’s interpretation must be contextual and principled, seeking to maximize not only its own independence, but that of the two other branches as well. A sound decision will therefore be one that allows Parliament to be master of its own house, the executive to regulate to the extent necessary to operate, while ensuring that the courts stand firm on issues affecting the rights of individuals, a matter in which the court itself rarely has a direct interest.

If courts surrender their independence to the interest of governing authorities, they deprive the democratic process of the necessary equilibrium between the legislative, executive and judicial branches, and by doing so impoverish democratic life.

In Sri Lanka, on which Crisis Group reports regularly, we can see the dangers of this. The judiciary has grown ever more subservient to an allpowerful executive and has failed to protect basic constitutional and human rights. For decades, ethnic bias in the courts helped fuel violent conflict by sanctioning state abuses and blocking political compromises with the Tamil minority. Since the end of the war three years ago, the rights of citizens from all communities have been undermined by judges’ increasing reluctance to challenge executive power or the interests of the ruling family.

When courts surrender their independence, as in Sri Lanka, they also of course betray the rule of law and undermine the public trust upon which their power ultimately rests. In the same way, if the judiciary enters the political fray in what appears to be a partisan way, it creates a distortion of the checks and balances upon which the entire democratic enterprise is founded.

The enforceability of courts’ decisions rests for the most part on compliance, not on coercion. No judicial system could operate on coercion alone. When the judge walks in the courtroom, for example, if the audience refuses to rise, the judge could cite the members of the audience for contempt of court and even sentence them to prison. But if the next day, and the day after that a new audience still refuses to rise as a show of respect to the court, will the judges eventually imprison the whole country to establish their authority and power?

The preservation of the public trust is therefore essential to the proper administration of justice, and that in turn is essential to the proper functioning of democratic governance under the rule of law: that is a system in which citizens can turn with confidence to the courts for the resolution of their disputes, including their disputes with the state.

Courts must also maintain the trust of the other branches of governance, for the same reasons. There are numerous cases of judicial subservience, real or perceived, to political interest, and they invariably reduce the public confidence in the administration of justice.

Let me make clear that I am neither an opponent of nor an apologist for robust constitutional oversight by courts.

In 1982, the Canadian Charter of Rights and Freedoms came into force broadening, on a constitutional basis, the power and indeed the duty of the courts to strike down legislation that offends constitutional provisions. Despites accusations of judicial activism, usually coming from those who happen to disagree with the outcome of the case, Canadian courts, under the leadership of the Supreme Court of Canada, have built a body of jurisprudence that has overall enhanced fundamental rights and freedoms in Canada, against encroachments by the provincial legislatures or Parliament, precisely as was contemplated by the Charter. In doing so, the courts have maintained the confidence of the public, even when the substance of their decision has been controversial.

After thirty years of robust constitutional adjudication under an entrenched bill of rights, and over a century of difficult adjudication of legislative and executive powers in a complex federal context, the courts in Canada have engaged in what some have described as a dialogue with Parliament, guiding the scope of its constitutional authority while respecting the function of elected officials in a free and democratic society.

The day the audience doesn’t stand up when the judge enters the courtroom – in fact or metaphorically – is the beginning of the end of judicial power. And in properly functioning judicial systems, people rise for the court not because they’re afraid, not even because they will necessarily agree with the decision in the case at bar, but because they respect the process and agree to yield to the authority of the court.

In countries in which judges and advocates before the court wear robes, the uniform is a symbol of the institution and serves in part to depersonalise the process. This is particularly important as a distinguishing feature of judicial power. True, some judges are celebrated in academic literature for their judicial acumen; others are admired by the profession for their courtroom demeanour and reputation for fairness and courtesy. But when it comes to signing an opinion in support of an order, they are part of a process, which may include a collegial decision, or appellate review, and their conduct engages the reputation of the entire institution.

Pakistan’s Transitional Democracy and the Rule of Law

International Crisis Group has exposed in its numerous reports on countries in transition the challenges in consolidating the rule of law while constructing, or reconstructing, the democratic institutions of governance.

In Pakistan, as in any transitional democracy, democratic development and, more specifically the rule of law, rest on the three branches of governance working together to undo the ravages of authoritarianism. This includes but goes beyond removing constitutional distortions that have undermined parliament’s authority and eroded judicial independence.

In this multi-ethnic and multi-regional state, federal functioning is essential for domestic stability. Constitutional provisions and safeguards must ensure that the four federal units have the authority and the necessary resources to meet the demands and needs of their constituents. More specifically, in the context of the rule of law, constitutionally enshrined fundamental rights and freedoms have to be respected and also strengthened.

Civilian law enforcement agencies, used in the past by authoritarian rulers to force citizens into subjugation, are now tasked with protecting citizens, and this will require a profound transformation of institutional practices and culture. Stabilizing the transition will depend on the political will and capability of elected governments to enact long overdue security sector reforms, including reining in the military and its intelligence arms, while at the same time reforming an overburdened and dysfunctional criminal justice system.

The responsibilities of the three branches of governance, and the need for a collaborative working relationship are more than evident in a transitional democracy. Political stability depends on the continuation and sustainability of the democratic transition. And this, in turn, requires executive, legislative and judicial leadership attuned to the frailties of the transition. If the transition stumbles or is disrupted through another direct or indirect military intervention, the rule of law will be the first casualty.

In the specific context of Pakistan’s judicial system, I must say that, however well-intentioned that provision was when it was enacted, the suo motu power of the Supreme Court, particularly as interpreted in the expansive fashion that it has been, raises – quite legitimately in an open society – a number of vital questions concerning the extent to which the court has, or has not, over-reached its role in a democracy.

One of the basic guarantees against rampant abuse of judicial power is the inability of judges to initiate the matters that come before them. However great their power to decide an issue, and in constitutional cases they are the ultimate decision makers, the fact that judges cannot choose what issue they will have to decide is one of the bars against judicial tyranny.

For that reason, even if the suo motu power is in fact a feature of a country’s constitution, it should be exercised with utmost restraint. In the same way, at common law, rights of appeal are statutory: they only exist if they are specifically provided for by legislation. So no matter how an appellate court judge may disagree with a lower court’s decision, he or she can only interfere if the defeated party below launches an appeal permitted by law. Only in the most exceptional case, when life or liberty of an individual is at stake, could one conceive of appellate courts fashioning a constitutional, rather than statutory, basis for reversing a decision on appeal on their own motion. And even there I’m not certain one could find precedents, at least in common law based judicial systems with which I am familiar.

It therefore cannot be a surprise that some find particularly troublesome the power of courts to compel the initiation of criminal investigations and prosecutions in cases that they will subsequently have to adjudicate. Particularly when they stand to adjudicate a dispute between an individual and the state, courts must be guided by legal principles that ensure their impartiality and the appearance thereof.

The presumption of innocence, enshrined in international legal instruments and in most legal systems, is a reflection of this requirement. The presumption of innocence is not a factual assumption, in any given case, that the accused before the court is actually innocent. It is a legal requirement, addressed to the authorities, and from which a whole series of rules flow, to proceed as if his guilt was in fact an open question. Absent the presumption of innocence the entire judicial process in many criminal cases could be viewed as superfluous, as it often appears to be in the eyes of the victim of the arresting authorities.

But it is from their respect for the presumption of innocence that the decisions of the courts derive their authority. They are part of a transformative process by which factual guilt becomes legal guilt, upon which the legitimate authority of the state to punish rests.

Departures from the principles that make judicial power what it is, and in my view the right of courts to initiate cases on their own initiative can be seen as one such departure, in time will erode the judicial character of courts and turn them into just another body competing for power alongside governments, corporations, the media, religious authorities and others.

Conclusion

Allow me to conclude by returning to my familiar Canadian field. In 1998 the Supreme Court of Canada delivered a landmark opinion in the Quebec Secession reference, a case dealing with the legality of a process for the potential separation of the province of Quebec from Canada. Needless to say the issue was existential, both for the future of the country and for the role of the court in it.

The court’s decision is praiseworthy for many reasons (I hasten to note that the case was decided before I became a member of the court): it contains a clear and cogent exposé of the interplay between democracy, federalism, rule of law and protection of minorities. But for our purposes today I want to underline how the court’s opinion is a model of balance between judicial power and judicial restraint in a democracy.

The court decided (although it is framed as an opinion, since it arose from a constitutional reference, for practical purposes the court’s opinion can be treated as having decided the matter) that a clear response to a clear question in a referendum in Quebec favouring secession would trigger an obligation on the part of the federal government to negotiate with the Quebec authorities the terms of secession. Over that process, the court said, it had no authority and could not adjudicate. In other words, it recognised that this would become a political process. The court recognized the boundaries between the juridical and the political in a remarkable exercise of judicial restraint – but after having exercised to its full and useful limits the judicial power to circumscribe the political issue. I commend this approach to you as I believe that it would help stabilize Pakistan’s fragile democratic transition.

I thank you very much for having given me this opportunity to share these thoughts with you and I will follow Pakistan’s democratic future with the greatest interest.