TWO important developments that took place on Tuesday highlighted the trust deficit among national institutions, especially between Parliament and the judiciary, and the need for institutional harmony to pull the country out of the existing messy situation. The National Assembly passed a resolution asking the Supreme Court to “refrain from interfering in political and administrative affairs” and called for the formation of a full bench of the apex court to hear constitutional matters. It also called for “non-interference” in the matters related to the Election Commission of Pakistan (ECP), besides demanding same-day elections in the country under impartial caretaker set-up in line with Article 224 of the Constitution. In a related development, Law Minister Azam Nazir Tarar introduced in the house the Supreme Court (Practice and Procedure) Bill, 2023 aimed at democratization of the top court through regulation of powers to take up suo motu cases and formation of the benches. The amendments were earlier approved by the Federal Cabinet.
There is absolutely nothing wrong in the two moves as Parliament is entitled to take steps to protect its honour and do legislation, as mandated by the Constitution. There have been longstanding complaints that the powers of Parliament were being clipped through whimsical interpretation of the constitutional provisions and laws and at times an impression was created to rewrite the Constitution, which is the sole prerogative of Parliament. Similarly, the judiciary has frequently been interfering in purely administrative affairs including postings and transfers which is the prerogative of the Executive. Controversial interpretation of the Constitution and intrusion into the administrative domain prompted fears among Parliament and the Executive that the Judiciary was, in fact, trying to shape up the political landscape of the country. The National Assembly has now spoken by unanimously adopting the resolution and it is hoped that the Supreme Court would listen to the voice of the people. Otherwise too, the resolution has not asked for any favour but only demanded an end to, what the legislators perceive, interference in their constitutional mandate. We have been emphasizing in these columns, time and again, that the country can run smoothly only if the scheme of things envisaged in the Constitution is respected by all pillars of the state and national institutions. It may also be pointed out that similar views have also been expressed by the Human Rights Commission of Pakistan (HRCP) which stated that polarization across the political spectrum was triggered by events designed to stall the democratic process and undermine the efficacy and legitimacy of Parliament. The HRCP noted with dismay the judicial overreach in conflict with the constitutional principle of the trichotomy of powers, emphasizing the need to dispel the impression that, in interpreting the Constitution, the Supreme Court enhances its own powers at the expense of other democratic institutions. Again, the Election Commission is also a constitutional body, fully mandated to take decisions to ensure fairness and transparency of the entire electoral process, but its powers and authority are also frequently transgressed and the Commission subjected to undue pressure through different tactics. It was in this backdrop that the National Assembly demanded “no infringement to be made to the constitutional rights of the ECP and the Commission should be allowed to hold elections as per its prerogative under favourable conditions.” As for unilateral powers of the Chief Justice of Pakistan, demand for democratization of the institution has also come from within the institution as two honourable judges – Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhel called for revisiting the powers of the ‘one-man show’ saying the country’s top court could not ‘be dependent on the solitary decision of one man’. The Government sees a pattern in the Constitution of the benches to hear cases of political and constitutional importance and, therefore, demands were made for the formation of the full court but such demands were simply ignored. Two important issues are involved as far as the proposed amendments are concerned – Parliament has the powers to legislate on any issue and the draft law doesn’t curtail powers of the apex court, rather seeks to delegate powers from one man to the institution. Be it parliament, Executive or Judiciary, the system will function smoothly only if decisions are made on merit and in accordance with the Constitution.
