Whose supremacy?
A DEBATE is on about the right mix between parliamentary supremacy and judicial freedom. Regime circles say the former is democracy’s core but our courts now act supreme. In fact, democracy actually means supremacy of people’s will and welfare, and the first two are just democracy’s tools to ensure these two. So, the right mix between the first two is one that maximises public welfare.
People in democracies delegate governance to elected agents. However, agents often cheat clients. So, many clients hire third parties to monitor big agents. Parliaments monitor executives, but both come from the same political parties and a political process rife with compromises. So, democracies globally make free courts their monitors as the courts’ members imbibe the high principles of justice and lack political links. What if judges cheat? Democracies don’t keep another formal monitor but use free media and civil society to informally influence all state pillars to pursue people’s welfare. This system of checks and balances is imperfect but works better than absolute systems.
Courts punish elected violators of the law but, globally, also review laws that undermine basic human rights or democratic norms as well as the ability of courts, media and civil society to monitor elected agents. These powers cut parliamentary supremacy but ensure that bad laws don’t harm the public welfare. Can courts nix constitutional laws passed by super majorities? As people’s supremacy trumps parliament’s, courts must nix such bad laws passed by even a 100 per cent majority to protect the people, but not laws in technical or administrative areas where judges lack the needed expertise.
So, public welfare is not maximised by maximising parliament’s supremacy but by balancing it with judicial freedom. Democracies flounder without such balance. Judicial freedom requires powerful executives to have no formal role in judges’ hiring and accountability and court rules and work, as that may undercut their ability to monitor executives freely. This is more true for weak democracies, where executives use even informal powers to coerce the courts, which must be curbed.
Democracies flounder without such balance.
It is better to have parliament, the judiciary itself, civil society and academia do these tasks. However, executive influence must be avoided while involving parliament by having committees with parity among ruling and opposition legislators, but no executive members. Our law ensures parity in committees while it involves executive members in judicial hiring. There is a case for adopting the system that the UK and India now have, where only judges do this, but by adding legal aces from civil society and academia to cut insularity. Our law rightly lets only judges hold judges accountable given the legalities involved, but gives too much leeway to chief justices in all court matters.
The new constitutional bill and other laws must be viewed via this lens. The key bad is a House with a rigged mandate amending the Constitution opaquely, hastily, and with possible horse-trading to alter the balance between state pillars for long. The worst specific issue is the prime minister alone naming the first head of the constitutional court, which means not parliamentary but executive sway over it. Even the basic case for such a court is weak.
Separate constitutional courts were set up mainly in civil law states where regular courts lack the powers to review laws. Our courts already review laws, thus nixing the most critical logic in favour of a constitutional court. Nor will it cut pendency much, which exists mainly in the lower courts. Ace legal minds point to the huge pitfalls involved in dividing our legal system. Few common law states like ours have done so. Involving politicians in judges’ hiring and accountability and court rules means conflict of interest and legal expertise issues.
The recent change in the Supreme Court procedures committee rules has also led to executive sway over the courts, as it was done via presidential assent to a cabinet decision and has re-established the chief justice’s monopoly, cut by an earlier law.
So, the bill reflects not principles but a naked power grab to tame judges. It may boost parliamentary supremacy but will reduce public welfare. Our courts have often harmed public welfare like other state pillars.
But the common factor undermining all state pillars is the establishment’s sway over civilian structures. The bill will empower the executive but the establishment even more. It will reverse our democratic snail march by decades and increase political illegitimacy, instability, conflict and insecurity.
The writer is a political economist with a PhD from the University of California, Berkeley.
Published in Dawn, October 15th, 2024