Daily Times

The courts in Pakistan have paid little attention to the principles of deference while expanding on their Constitutional jurisdiction. This expansive approach, with little regard to underlying principles of separation of powers, has manifested in most, if not all areas of law, that the superior courts have touched.

Deference is a requirement of comity that depends on process costs and value of second guessing by an independent decision maker. The default position of the courts ought to be, not necessarily is, to keep their hands of the decisions of the administrative bodies, and only review such decisions in exceptional circumstances, such as instances of capriciousness, to prevent abuses.

Ergo, courts must respect discretion vested in coordinate branches, that may be express, implied or inherent. For instance, executive discretion is a freedom for an administrative body to answer a question in more than one way; and judicial deference ordinarily leaves an administrative authority free to answer such questions. Massive deference results in courts declining to speak on certain issues declaring them as non-justiciable, such as national security or foreign affairs. On the other hand, courts are expected to be deferential when issue presented before courts falls within the domain of political question or a policy matter in general.

Our superior courts in their Constitutional jurisdiction need to lay greater focus on developing principles of deference. This is quintessential for truly acknowledging separation of powers in our scheme of Constitution

Across Atlantic, the courts in the US have remained consistent in their approach towards deference since the case of Hearst Publications (1944). The premise being, judicial branch is an expert for interpretation of statutes and agencies are expert at finding policies. So the courts would not defer only on question of statutory interpretation i.e. finding the intent of law-makers. And then Chevron (1984) happened!

SCOTUS developed a two-tiered approach in Chevron (1984); if the Congress’s intent is clear then that intent governs – both the court and the agency must give it full effect. If, however Congress has not directly addressed the question and the agency has stepped into vacuum by promulgating an interpretive regulation or rule, a reviewing court may not simply impose its own construction on the statute, rather ask whether the agency’s answer is based on a permissible construction of that statute.

The new approach, so to speak, was more deferential. Even in matters of statutory interpretation the court seems to defer to agencies. There are times when statutory interpretation enters into the province of policy. Chevron (1984) admits that. And holds that once the court is satisfied that the legislative intent is not clearly discernible; the meaning of the text is then heavily influenced by the considerations of policy in their implementation. Therefore, agency should be left with a choice in context of administration and courts should defer to it so long as the construction is reasonable.

Development of jurisprudence on deference here has been starkly different. Forget deference on permissible construction of statutes; our superior courts continue to fix prices of bread and until recently collected funds for dam projects. There is an implementation bench of the apex Court monitoring the progress of Diamer-Basha and Mohmand Dam. Judicial overreach into policy issues, in the past led to an executive branch being undermined and ridiculed as a norm. Little has changed – with few exceptions!

The superior courts have been more deferential towards the other coordinate branch; the parliament. In order to save legislation, the courts have read down different provisions instead of striking down acts of parliament or severed part of statutes when laws were struck down. But not every development in the parliament has escaped judicial review. The courts, for instance, have made suggestions to the parliament to enact certain laws or bring amendments in existing laws, including in the Constitution like in Nadeem Ahmed Case (2010).

Further, while abhorring the practice of allocation of funds to parliamentarians, Supreme Court has ruled that the issue development funds to parliamentarians is justiciable in suomotu action against distribution of development funds by Prime Minister (2014). And then there have been declarations of disqualification of elected representatives under Articles 62 and 63 of the Constitution. Notwithstanding the merits of all such decisions, one may argue, that in all these cases, instead of assuming jurisdiction, greater restraint could have been exercised.

Our superior courts in their Constitutional jurisdiction need to lay greater focus on developing principles of deference. This is quintessential for truly acknowledging separation of powers in our scheme of Constitution. Vacuum theory or drive for substantive justice need to be balanced with principles of judicial restraint. This will lend greater credence to the judicial branch of our government.

The writer attended Berkeley and is a Barrister of Lincoln’s Inn