On the 19th of May 2020, the Supreme Court of Pakistan set aside the Government’s partial economic lockdown claiming that the country should not altogether be made “dysfunctional” because of the novel coronavirus. The decision to lift the lockdown was made by a five-member bench headed by Chief Justice Gulzar Ahmad, whose order was riddled with constitutional and logical irregularities.
On 9th June, 2020, the same Supreme Court urged the Government to take Covid-19 “seriously.” A Supreme Court is typically understood to be the most knowledgeable legal authority in the land, however, the contradictory statements of the Pakistani Supreme Court in the wake of a pandemic suggests otherwise.
Principle of separation of powers: is it being upheld?
Firstly, I must bring to light the principle of separation of powers. This principle holds that in order to avoid concentration of power in the hands of a minority in a political system, the three organs of state – the executive, the legislation and the judiciary – should enjoy equal and autonomous powers. Authoritarian or arbitrary rule by one organ is avoided when the rule of trias politica is followed.
Montesquieu, the founder of this principle, must be rolling in his grave on seeing the mess the Pakistani Supreme Court (and other branches of state) has made of this principle. It is not only widely respected in political theory but also enshrined in the 1973 Constitution of Pakistan. The decision to lift the lockdown is one that lies in the hands of the executive after consulting health experts. The Supreme Court is neither the executive nor staffed with health experts.
With two judges of the Pakistan Supreme Court testing positive for the coronavirus, the country’s apex court has asked the government to take the worsening COVID-19 situation seriously.https://t.co/OUmFuumTVr
— The Wire (@thewire_in) June 9, 2020
Secondly, relationships of accountability are of paramount importance in a democracy. The Supreme Court is a body of elite, unelected judges who will never be impacted by the virus the way a common citizen of Pakistan will. If the Supreme Court wants to make uninformed and spontaneous decisions regarding public health, it should be ready to face the music. However, when judicial accountability is questioned, the Supreme Court is shrouded by the veil of “contempt of court.”
The purposive integration of the separation of powers is defeated when a body of five unelected judges makes such major decisions. The CJP then mandated the Government to submit an application to NHSRC the same day – because that is how decisions of public importance can be made when you are accountable to no one – instantaneously and without caution.
Provinces not so autonomous after all
The Chief Justice, in his order, asked how Sindh could prevent malls from opening. The answer to the CJP’s question is that Pakistan is a federation where provincial autonomy exists. Sindh does not need to be answerable to Punjab and vice versa; another principle that can be easily found in the Constitution.
When the CJP did make reference to the constitution it was with regards to Article 25 of the Constitution to say that the closure of shops on Saturday and Sunday would be a violation of the same. He believed that days have been named for the convenience of the human race and discrimination of Saturday and Sunday against the rest of the days would be a constitutional violation. In that case, would granting public holidays also be a violation of Article 25? Such an interpretation of the constitution is problematic and nonsensical, to say the least.
Protecting wealth or lives: what is the priority for supreme court?
Lastly, and this argument is my favourite; the CJP asserted that closing businesses and shops would make capitalists and industrialists lose faith in the system. I guess then at the end of the day, law is a tool that is only made to facilitate the rich and powerful. Karl Marx would’ve had a field day with this argument. It is okay for the common man to lose faith in the system, but God forbid businessmen are financially harmed. According to the Supreme Court economic loss would bring about disaster and calamity in the country, but the loss of millions of lives wouldn’t.
The Supreme Court arbitrarily took this decision when Pakistan was at 40,000+ cases and 900 deaths. Pakistan was also in the top 20 most affected countries in the world. Therefore asking the Government to now take the virus seriously, after many Supreme Court judges and its staff have become infected is like crying over spilt milk. The Supreme Court made its bed, now it ought to lay in it.
Maneha Tariq is a lawyer; graduated from Lahore University of Management Sciences (LUMS) with BA- LLB. She is interested in Constitutional Law and the intersection between Law & Economics. She previously worked for publications such as Courting the Law and the Lums Law Journal. She tweets @Maneha7. The views expressed in this article are the author’s own and do not necessarily reflect Global Village Space’s editorial policy.