After the Second World War, many liberal democracies ceded power to the judiciary to enforce fundamental rights. Legal commentators described this trend as the “judicialisation of politics”. Over the years the ambit of that judicial power has been a subject of great interest across the world including in countries like the US and the UK. It is imperative to understand the role of this “judicilisation” and the scope of the power of the Supreme Court in Pakistan.

In our Constitution, we too empower our superior courts to secure the fundamental rights. Chapters I & II of Part II of the Constitution carry fundamental rights and directive principles of policy, they constitute the “conscience of the Constitution”. The directives contained in Chapter II of Part II in our scheme of the Constitution must conform and operate as subsidiary to the fundamental rights guaranteed in Chapter I of Part II, otherwise the enshrined fundamental rights would be a rope of sand.

The Supreme Court under Article 184(3) of the Constitution, like the High Courts under Article 199(1)(c), can pass orders as may be appropriate for the enforcement of any of the fundamental rights conferred by Chapter 1 of Part II. The jurisdiction under Article 184(3) is conditioned by three pre-requisites: there is a question of public importance; such question involves enforcement of the fundamental rights; and fundamental rights to be enforced are conferred by Chapter 1, Part II of the Constitution.

The scope of Supreme Court’s powers to enforce the fundamental rights has become – to put it mildly, controversial in the last decade, especially post-2007. The court chartered on previously unknown territories with little or no deference shown to other arms of the government and judicial activism became the buzz-word. The Supreme Court actively engaged in reviewing administrative acts that it considered were violations of fundamental rights. “All power is, in Madison’s Phrase ‘of an encroaching nature’, Justice Frankfurter famously penned down in Trop v. Dulles. He wrote “Judicial Power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint.”

The authority of the superior courts rests on moral sanction enabled by sustained public confidence. If the superior courts clash with political institutions or appear to be getting entangled in political controversies, then the courts do not inspire public confidence. Alexander Bickel argued “discharge [of judicial function] by the courts” must not “lower the quality of other departments’ performance by denuding them of the dignity and the burden of their own responsibility.” In the phase post-2007, it seemed more of a judicial crusade geared towards diminishing other branches of government with a strong presumption, invariably in all such cases of public interest, they are corrupt or incompetent. The over-reach of judiciary, if not mostly than many times, significantly outweighed the under-reach of other branches of government.

The purpose of entrenched fundamental rights is to withdraw them from the vicissitudes of political controversy. Those rights must not be submitted to vote nor depend on the outcome of any elections. Incumbency indeed is a reality in democracies. Politicians invariably play out to the galleries. With eyes firmly set on elections, they want to preserve their incumbency and that of their own party members. They may not be too inclined to take unpopular decisions. This is where the argument for enforcing fundamental rights by the Supreme Court comes in. Equitable jurisdiction under Article 184(3) is meant for enforcement of fundamental rights of the people who are poor, weak, ignorant of redressal systems or otherwise in a disadvantageous position, due to their social or economic background.

If protecting minorities, for instance, is not high on the priority of the politicians to avoid displeasing their respective constituencies, then the courts must intervene to safeguard their interests. The judgment handed down in SuoMotu Case No. 1 of 2014 is a fine illustration of how public interest litigation to enforce fundamental rights should be treated. The jurisdiction under article 184(3) was exercised to safeguard the rights of the underprivileged and politically irrelevant classes. It is likely to have far reaching consequences on the future trajectory of the Supreme Court in enforcing fundamental rights. Rolling back its already inflated scope is unlikely, but far greater restraint would be seen in future.

With Pakistan’s subjective and parochial political culture marred by periods of totalitarian dictatorial rule, it is important for the courts to extend concession to other branches of the government. The courts need to exercise their powers of enforcing the fundamental rights sparingly aimed only at the politically disenfranchised classes of the society. If the courts are so much as perceived to be undermining either the legislature or the executive then it does not only risk their own legitimacy but democracy as a whole loses.

The writer is a Barrister of Lincoln’s Inn.