The assault on the rule of law in Pakistan and the courageous response of the legions of lawyers taking to the streets of Lahore, Karachi, and Islamabad are a vivid reminder that constitutions matter. But like the foundations of buildings and of our homes, constitutions are largely invisible, taken for granted, and tested only in dire times.
Events in Pakistan remind us that constitutional law is not only the interest of academics, public lawyers, and government officials; in a true sense it is the people’s supreme law.
I remember as a law student browsing through a series called Constitutions of the Countries of the World, which had collated and translated constitutions from around the globe (these days the University of Richmond has an online version).
The contents of the Soviet and the Syrian constitutions compared favourably to the rights enshrined in the Charter or those proclaimed in the Universal Declaration of Human Rights.
But constitutions do not exist on paper or in an online world. Learned Hand once famously proclaimed, “Liberty lies in the hearts of men and women,” and that when it dies, “no constitution, no law, no court can save it.” Constitutions are living entities that must be nurtured and sustained by the societies they inhibit.
Judges have a special role in this process. They are often described as guardians of the rule of law or defenders of the Constitution. We cherish judicial independence as a constitutional and democratic value, but it often seems hopelessly abstract to us as lawyers and even more amorphous to members of the public.
This month at U of T we are hosting a conference on judicial independence to mark the 10th anniversary of the Supreme Court of Canada’s decision in the Provincial Judges Reference. (Readers may recall that this was the case where the court derived the unwritten constitutional principle of judicial independence from the preamble to the BNA Act, which sought to provide Canada with “a Constitution similar in principle to that of the United Kingdom.”
The court proceeded to find that judicial independence required governments to set up independent remuneration commissions to determine judicial salaries and benefits to insulate the judiciary from unseemly political bargaining with governments over money and benefits.)
Part of what motivated us in convening the conference was a feeling that judicial independence had degenerated into a slogan. In our polite academic terms, we say in our conference materials that judicial independence is “frequently mentioned but rarely . . . analyzed in any sort of systematic way.”
Events in Pakistan should shake us from complacency over judicial independence. Musharraf’s declaration of state of emergency reads like a declaration of war against Pakistan’s independent judiciary. The words “judiciary” or “judges” appear no less than 11 times in the declaration and are implicitly referenced on another several occasions, easily outpacing references to terrorism.
If the rule of law is restored in Pakistan, it will be the judges and lawyers who will rightly be credited. We may be witnessing a revolution of the suits and spectacles where barristers in their off-the-rack 40 regulars are descending from their offices to the streets to protest the state of emergency and demand the reinstatement of the constitution - their constitution.
And what exactly are these measures against which the lawyers are protesting? They read like a checklist for would-be tyrants: First, sweep aside the non-compliant members of the Supreme Court and replace them with more “reliable” (i.e. favorable) judges. Second, place those unreliable judges under house arrest and make sure that they are unable to communicate with the outside world, by jamming cellphone signals, etc.
Third, lock up other leading lawyers and human rights activists, including the lawyer for the chief justice. Fourth, ban public protests. Fifth, shut down and silence any and all independent domestic media. Sixth, expel foreign journalists of papers who write critical editorials of the supreme leader, etc.
I doubt if the Pakistani deputy information minister appreciated the irony in his statement quoted around the world that, “[W]hoever breaks the law will be taken to task.” He was talking about plans for rallies and protests, but if the lawyers in suits succeed, he may be foreshadowing Musharraf’s fate and perhaps that of his own.
The events in Pakistan are a stark reminder about the often vital role that an independent judiciary plays in a constitutional state. In Pakistan, the supremacy of the constitution and the independence of the judiciary were swept aside together. In other countries, such as Zimbabwe, the independence of the judiciary is attacked in order to undermine the constitution.
Here in Canada, we have come to rely more and more on the independence of our judiciary. Despite griping by politicians and members of their public about judges being soft on crime or too activist, when the chips are down our political leaders turn to the independent judiciary to bail them out.
Over the last decade, we have witnessed a growing tendency on the part of our political leaders to use the vehicle of commissions of inquiry invariably headed by a judge to attempt to literally “neutralize” some combustible political issue. Until Gomery, not much of this work could be described as “prime time.”
Many of the judges who take on these often thankless tasks are at the end of their career or retired and do so out of a belief in public service and a desire to do something interesting and perhaps of value. These independent and unimpeachable judges form constitutional backbone in our vibrant democracy: O’Connor (Walkerton and Arar), Iacobucci (Arar follow up), Major (Air India), Goudge (Dr. Charles Smith), Linden (Ipperwash), Hickman, Evans and Poitras (Donald Marshall, Jr.), Gomery, and many others.
And now governments will be drawing upon the constitutional capital of judicial independence to launch a public inquiry into former prime minister Mulroney’s business dealings with Karlheinz Schreiber and one into the Vancouver airport Taser death.
The message reverberates from the streets of Pakistan to half way across the globe here in Canada: constitutions matter to the life and liberty of citizens and are not simply dry words posted on the pages of a legal research web site.
Adam Dodek is a Visiting Scholar at the University of Toronto’s Faculty of Law in 2007 and at Osgoode Hall Law School in 2008.