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Post Role of Judiciary in Constitution Making in Pakistan

Since at least the time of Alexander Hamilton (Federalist No. 78), most legal commentators have shared the conception of the judiciary as standing apart from and limiting the scope and intrusiveness of the political process. Buchanan, Knight, Hayek and Tocqueville are few among many philosophers and political theorists who have maintained that the primary role of judiciary is to enforce the constitutional contract and to arbitrate disputes among citizens over its content . In the words of James Buchanan:
“Ideally, courts interpret and enforce the rules, both for private parties and for legislative and executive branches of government…I want an independent judiciary to enforce the rules that exist, however these might have emerged. I want this judiciary to restrict the actions of legislative bodies and administrative agencies then try to modify these rules when they are not legitimately empowered to do so…I want courts once again to take a hard look at the constitutionality of legislative and executive actions, but in terms of the existing rules of the game, and not in terms of the judges’ own social or ethical ideals” (Buchanan, The Independent Judiciary in an Interest Group Perspective: Comment, JLE)

The constitutional theory has, however, ignored the pre-constitutional role of judiciary. The scope and consequences of Judiciary’s role in constitution making processes have been different in different nations but judiciary has, nonetheless, played an important role in defining the structure of the state. Apart from settling the disputes between the judiciary and either of the other two branches of government (legislature and executive), the judiciary is also assigned the responsibility for arbitrating constitutional disputes (Mueller). This role of judiciary implies that it will have to arbitrate disputes in which it is one of the parties in conflict. This does not only raise question of judiciary’s incentives but also highlights an important function that has not been emphasized in theory.

Both in US and Pakistan, judiciary has dealt with important questions and their decisions have been consequential for the state structure. In US, Marbury v. Madison (1803), Marbury v. Ames have been important cases for the relations between polity and court in US. Courts have also raised and settled the doctrine of Political Question. However, the US Court has limited its role in structuring the state and has been hesitant even to use its power of judicial review in the modern state (Pfiffner, 1995).

The role of judiciary in Pakistan, however, has been much more participatory. The courts have allowed discussions of executive behavior and have decided conflicts between citizens and the state when the government is not empowered by the citizenry. The Pakistani courts have discussed the breadth of executive powers, the natures of rights, the ideological cum religious basis of the state and prospects for representative, democratic governance. The courts have played important role whenever the state has faced the problem of political reorganization and political legitimacy. The judiciary has often practiced law without the benefit of a constitution, approximating its functions when no document existed and thus in the process have created new constitutional instruments (Newberg, 1995). “For the courts, judicial review has often meant creating a constitution” (Newberg, 1995, p: 248).

Themain quest right now is to examine the role of judiciary in Pakistani constitution making and to analyze the reasons for an extensive role. Has judiciary primarily acted as an executive instrument assisting it to legitimize its rule and its role in state building has simply been an off shoot of that? Or has judiciary consciously, voluntarily and directly been involved in state structuring by providing a limited space for public voice and reacting to the need for political change by civil society? Has the unique political and social situation of Pakistan lent itself to an extensive role of judiciary? Is Judiciary the appropriate platform for redefining the ideology/structure of the state? What are the ramifications of judiciary’s involvement for constitutional democracy? The ultimate question is, what, in the present state, has emerged from court rulings and what was the pre-constitutional consensus (if there was any)? If the courts seek political distance, how can state institutions be instructed to change? If the courts themselves decide what is justiciable and what is not then where, finally, does the sovereignty lie?

Note: The purpose of the article is to generate valid and most important question right now concerning the role of judiciary in Pakistan. The aim of putting it up here is for brainstorming. I would really appreciate your comments.

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