A win for constitutional values in Pakistan and Kenya 

News: The Supreme Court of Kenya has struck down the Building Bridges Initiative (BBI) as unconstitutional. And The Supreme Court of Pakistan unanimously rejected the decision of the deputy speaker of parliament to disallow the no-confidence motion against the prime minister. It also rejected the follow-up decision of the president to dissolve the National Assembly. Both the decisions were declared unconstitutional.  

What are the issues in post-colonial societies?

There has been a trend of weak judiciary in many post-colonial societies. It was seen in Kenya, Pakistan and other fellow countries  

What are the key takeaways for the Supreme Courts of other post-colonial societies? 

Both the Supreme Court of Kenya and Pakistan have become examples of judicial independence.

– In 2017, the SC of Kenya nullified the election of the president due to irregularities.

– In 2021, the Pakistan SC instructed the executive to rebuild a Hindu temple that had been vandalised from its own resources and to recover the expenditure from the vandals. 

These rulings imply that the Judiciary in post-colonial societies have been retrieved from their zone of neglect. They have restored to its rightful place at the heart of the constitutional order. They have upheld the classical principle of constitutional democracy, known as “checks and balances”. 

The constitutional courts should act with judicial independence. They should regulate the flow of politics rather than be compromised and submerged by it. 

In the present cases, the judiciary has restored the sanctity of the constitution. They have upheld the principle of limited government. In fact, this principle is at the heart of a constitutional democracy. It means the electoral verdict does not give the legislature and the executive unlimited power.  

The judiciary of other post-colonial societies can learn the lesson that all stakeholders should be consulted by the judiciary before giving final verdict. For example, the Supreme court of Kenya and Pakistan consulted all the stakeholders. 

The Supreme Courts upheld the sanctity of the constitution by rejecting the “doctrine of necessity”. The doctrine mandates to live with the illegal decision of the executive since it is necessary. 

What are four factors that explain the boldness of the courts?  

(1) The law should be of good quality. They should be clear about the necessary constraints on the executive. The laws which are unambiguous make less difficult for the judiciary to arrive at the right ruling.  

(2) The political elites in the country must publicly question the actions of the executive. It emboldens the judiciary.  

(3) There has to be a robust public discourse about the unconstitutionality of the executive decision. It will also embolden the judiciary to reverse the declining legitimacy of the constitutional order.  

(4) The judges should be courageous. To become so, the judges require to have “vision” to imagine the future that the constitution envisages for the country, “Passion” to see themselves as the custodians of its constitutional values, and “a sense of responsibility” that makes them fair regulators of arrogant politics. 

Source: The post is based on an article “A win for constitutional values in Pakistan and Kenya” published in the Indian Express on 18th April 2022.