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Shopping Malls Verdict: Should The Courts Be Taking Policy Decisions?

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On Monday 18 May 2020, the Supreme Court of Pakistan handed down an order to effectively re-open all shopping malls in the country. This was authored by Chief Justice of Pakistan Gulzar Ahmed, who headed a five-member bench to hear a suo motu case regarding measures taken by the government to combat the COVID-19 pandemic.

Under the separation of powers principle, each of the tasks performed by the executive, legislature and judiciary has an integrity of its own, which risks contamination if a task specific to one institution is tangled up with the tasks of another. Beyond the obvious judicial intervention in executive functions, the order sets a dangerous precedent because it might contribute to a public health crisis with no accountability mechanism. The Supreme Court bench does not consist of elected officials where citizens can exercise accountability using the democratic process. In a post-crisis inquiry, there might not be a way to apportion blame without calling into question the integrity of the judiciary as an institution.

Prioritisation of private interests over provincial autonomy

Paragraph 10 of the order lists two distinct but related sub-orders: the first directs the Sindh Government to apply to the Ministry of National Health Services Regulations & Coordination (NHSRC) for approval to open shopping malls. The second requires that the Sindh Government allow shopping malls to be open if approval is granted and not hinder the re-opening process.

The second of these is most problematic – while conditional on NHSRC approval, the order transfers de facto power from the Sindh Government to real-estate companies that operate shopping malls. That is, the power to decide whether to re-open the malls (and therefore ease existing restrictions) no longer rests with the provincial administration that has been overseeing the response to a public health crisis.

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This transfer of power raises difficulties because the power vested in the Sindh Government exclusively concerns the public good. In contrast, private actors are not entrusted by citizens to make decisions in the public interest. Owners of shopping malls have been effectively empowered to carry on business at a time that marks a seasonal peak for shopping.

Legally speaking, the court sets a dangerous precedent by curbing executive authority that vests in the provincial administrations. Aside from the order’s shaky “if Punjab, why not Sindh?” reasoning, the reduction of provincial powers is problematic because the 18th Amendment to the Constitution made sweeping changes to the federation, including a significant realisation of provincial autonomy.

The reforms brought about by the 18th Amendment in part set the pretext for the Sindh government to be the first mover in the country to announce a lockdown on 21 March and maintain the closure of malls despite re-openings elsewhere in the country.

Judicial restraint and the separation of powers

In its order, the Supreme Court also made intriguing evaluations that are not exclusively in its domain. The court said it expects governments to not invest all their resources for fighting the virus because it would lead to “highly detrimental consequences for the people of Pakistan”. Justice Gulzar Ahmed criticised the pandemic for “swallowing huge money.” He also emphasised the need for businesses to be protected because an extended period of restrictions would mean reduced prospects of revival.

The court’s reasoning raises serious issues. As an unelected state official, judges should refrain from passing value judgements about public expenditure and economic policy – these issues are linked to the political process to be managed by public representatives. There are also epistemic issues with a judge making such judgements, as judges are skilled in applying the law and by dint of their training not trained to respond or address the concerns of ordinary people.

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The court itself is not institutionally resourced to decide the merits of allocating public resources. In raising the needs of businesses and the budgetary concerns about the pandemic, the courts acting in an activist fashion sits both outside its basic competence and its democratic mandate. This is not the first time the apex court has used its jurisdiction to intervene in what many would consider to be the executive domain. In June 2018, Chief Justice Saqib Nisar ordered the federal government to set up a crowdfunding account for the construction of dams in northern Pakistan.

Monday’s order is similar to the dam fund crisis in that the court shows disregard for executive functions. However, the decision goes further because the court directly assumes executive capacity by deciding, on its own accord, to ease COVID-19 related restrictions. This was a crucial policy decision that should not have come from the judiciary – which, prima facie, has exercised the functions of the executive.

The order has caused uproar about the apex court going too far. These concerns are not without merit: the order has final consequences that concerns lives and there may not be a way to apportion blame without calling into question the integrity of the judiciary as an institution.

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Naya Daur