Thursday, June 28, 2012

US Supreme Court Ruling and the precedent for the world (especially Pakistan)

By Yasser Latif Hamdani

The Supreme Court of the United States ("SCOTUS") has ruled that Obamacare is constitutional. The  "Court held that the individual mandate, which requires that virtually all Americans either obtain health insurance or pay a penalty by 2014, is constitutional."

This is no doubt a historic decision for the US and for President Obama. The SCOTUS ruled that the Congress had wide powers under the commerce clause but it upheld the law under taxing power of the Congress i.e. the penalty to be imposed is a tax against not paying for health insurance.  Indeed this would have a major impact on the impending elections which the sisterblog of this website will be looking at in some detail in the coming future.

However my interest - as a Pakistani lawyer- is in the persuasive precedent this historic ruling sets for the rest of the world and in particular Pakistan and also Egypt, the two Muslim majority states also grappling with the issue of judicial overreach at the moment. In Pakistan a democratically elected and relatively secular government has been the direct victim of judicial overreach. Chief Justice of Pakistan, Chaudhry Iftikhar, has disqualified the former Prime Minister, Mr. Yusuf Raza Gilani for not initiating proceedings against President Asif Ali Zardari despite the fact that such an action is constitutionally barred in clear language of the constitution. In Egypt a secular judiciary has thrown out an Islamist parliament.

In a recent statement the Chief Justice of Pakistan stated that judiciary will resort to judicial review whereever the parliament legislates against the constitution and Islam. The power of judicial review vis a vis legislation that is ultra vires to the Constitution is obviously well established.  However Islam is a much broader issue and as democratic country which nonetheless has a self limiting repugnancy to Islam clause in its constitution, the rules of statutory interpretation suggest that there should be a presumption attached to parliamentary actions that its actions are necessarily not repugnant to Islam.  The parliament is aided in this by the recommendations of the Council of Islamic Ideology.

Unfortunately through a dictator's order, Pakistani constitution was amended to provide for a "Federal Shariat Court" in the 1980s. This Federal Shariat Court was empowered to determine whether laws are repugnant to Islam or not.  This virtually invaded legislative space. Interestingly Jinnah, the founder of Pakistan, had stated in clear terms that Pakistan shall not be ruled by priests with a divine mission. The cumbersome judicial oversight by Federal Shariat Court - which has mandatory spots for Islamic clerics- in of itself violates that first important promise by the founding father.  Now the Supreme Court also claims to have the power of reviewing legislative business on the touchstone of Islam.  Given the multifarious interpretations of Islam,  judicial review either by the Supreme Court or the Federal Shariat Court cannot be taken as the final word. Meanwhile the Parliament, elected of the people, a great majority of which are Muslims, is a far better institution to determine the "Islamicity" of an action.  After all, a well known hadith of the Holy Prophet (PBUH) says "my ummah cannot err in consensus".  The legislation of the parliament is then the consensus of the people of Pakistan.

Coming back to the SCOTUS ruling,  Chief Justice Roberts stated in no uncertain terms that it was "not our job to protect the people from their political choices". I wonder what the Chief Justice of Pakistan has to say about that. President Asif Ali Zardari and the People's Party coalition is the political choice of the people of Pakistan.  Is it the job of the Pakistani Supreme Court then to protect the Pakistani people from their political choices?  Same goes for Egypt.

Either we believe in democracy or we do not!  SCOTUS proved convincingly that the greatest supreme court on Earth believes in the supremacy of the legislature.  Now the question is whether we in Pakistan or those in Egypt would choose the path of democracy or go down the path of judicial dictatorships.

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