In the sacred corridors of justice, where verdicts are rendered, there always exists a voice of unparalleled brilliance – a dissenting voice. It is in the dissent that the very essence of democracy, the true spirit of the law, and the beauty of jurisprudence come to life. In the recent events, the dissent of Justice Syed Mansoor Ali Shah resonates not as a mere opposition to the majority but as a sincere defence of the very essence of democracy and serves as a powerful reminder of the sanctity of the rule of law.
Oliver Wendell Holmes once stated, “My duty is not to do justice but to apply the law.” These words sum up the essence of the judge’s role, emphasizing the importance of interpreting and applying the law as it stands, regardless of personal preferences or the prevailing societal sentiment. In a recent 2-1 verdict by the Supreme Court of Pakistan, Justice Syed Mansoor Ali Shah’s recent dissent resonates with the jurisprudential philosophy of the late Justice Scalia of the United States Supreme Court.
The case in question dealt with the restoration of corruption cases against public office holders, which had been withdrawn after amendments to the country’s accountability laws. While Chief Justice Umar Ata Bandial and Justice Ijazul Ahsan upheld the maintainability of the case, Justice Syed Mansoor Ali Shah voiced his dissent, sparking considerable debate and criticism. His dissenting opinion sheds light on the core issue at hand i.e., the constitutional importance of parliamentary democracy, which deserves a closer examination and endorsement amidst criticism.
If we look at Justice Shah’s primary contention, it becomes evident that the case is not solely about the alleged uneven amendments to the National Accountability Bureau (NAB) law but rather a fundamental question concerning the power vested in Parliament, which represents the chosen representatives of Pakistan’s population of approximately 240 million people.
His dissent eloquently defends the principle that judges should not usurp the legislative function of elected representatives. He argues that the judiciary must abstain from second-guessing the purpose and policy of enacted legislation which resonates with the philosophy of the late Justice Scalia of the US Supreme Court, a proponent of textualism and originalism in American jurisprudence, who believed in a strict interpretation of the law as written. Justice Antonin Scalia’s philosophy of textualism which dictates that the meaning of a statute should be derived exclusively from the text enacted by the legislature, mirrors Justice Shah’s call in his dissent where he asserts that the majority judgment falls short of recognising the constitutional command that “the State shall exercise its power and authority through the chosen representatives of the people”.
Furthermore, Justice Shah criticizes the majority for attempting to transfer a political debate from the Parliament to the Supreme Court, a move that brought a bad name to the institution in the past and could tarnish the institution’s reputation again. If we recall the case involving the tenure of the Army Chief in Pakistan, the Supreme Court was asked about the tenure of the Army Chief and the Supreme Court with Justice Shah on the bench wisely acknowledged the absence of clear law and sent the matter to the parliament to set the law recognizing that such decisions rightly belong in the hands of elected representatives who represent the “will of the people”. Once again Justice Shah rightly contends that it is not the court’s role to regulate amendments because if the elected representatives cannot amend statutes, what purpose does the amendment provision in the constitution serve?
Justice Scalia’s perspective shared by Justice Shah emphasis on respecting the authority of elected representatives and refraining from judicial overreach. In his dissent, Justice Shah highlights the need to recognize the limits of judicial jurisdiction when assessing legislation’s constitutionality. He emphasizes that the judiciary’s primary responsibility is not to legislate from the bench but to safeguard the constitutional framework, entrusting lawmaking to elected representatives and preserving the principles of democracy and separation of powers.
Both jurists believe that the power to make and amend laws should primarily rest with elected representatives, safeguarding the principles of democracy and separation of powers. If you wish to have a right or revoke a right, do it the way most rights are created or revoked in a democracy. If you want change, all you need is a legislature and a parliament. If you want a change then amend the law and pass a legislation. And later if you find out that results are worse than we thought, simply repeal the law. As the debate surrounding the court’s decision continues, Justice Shah’s dissent serves as a reminder of the vital role played by voices like him who refuse to be silenced and, in doing so, strengthens the very foundations of democracy.
