The countries that have written constitutions function on the principle of tri-chotomy of powers that clearly delineate and spell out the role of the organs of state which are considered to be its pillars. For the
orderly and smooth functioning of the state it is imperative that these institutions operate within the limits set by the constitution and play their due and supportive role in carrying forward objectives of the state geared to promoting well being of the people. Any trespassing into each other’s domain is considered disruptive and inimical to the state interests. The countries where such interventions happen remain consigned to perennial instability and chaos. Pakistan is one of those unfortunate countries where the state organs have exhibited unmitigated propensity to meddle into the affairs of the other state institutions, arrogating themselves the role of self-styled saviours. Judiciary which is the most sanctimonious institution of the state and has the responsibility to protect the constitution by making sure that the state institutions function in conformity with the spirit of the constitution, has itself been the major offender in regards to maintaining the sanctity of the constitution.
It has been validating military coups on the basis of invented doctrine of necessity, arrogating itself the power to authorize the dictators to decimate the constitution notwithstanding the fact that according to the constitution, only parliament was competent to amend the constitution. Thus judiciary was guilty of breaching the constitution. Added to this were some of the most controversial decisions at different junctures of our history that have had debilitating impact on the polity scuttling the chances of democracy ever taking roots in the country. It is really regrettable to note that our state institutions including judiciary have not learnt any lesson from our unenviable past and no serious and honest effort has been made to save the country from self-inflicted tragedies.
The new found judicial activism in the backdrop of the lawyer’s movement for restoration of judiciary during Musharraf regime is proving to be even more damaging and has created an ambience of confrontation between the state institutions. Democracy might be at work but it looks like that its wheels might come off any time. The judiciary has been trying to overlord the executive and Parliament and in the process has delivered verdicts which have come under severe criticism by the eminent legal and constitutional exerts of the country. One of the constitutional expert who commands a great respect among the fraternity of lawyers and also contributes columns to a national English daily has even described the phenomenon as ‘judicial imperialism’. Justice Jackson of the US Supreme Court said “the apex court is not final because it is infallible, but it is infallible because it is final” What it means is that it is a wrong notion to perceive that the apex court cannot make mistakes and is always right. However since the verdict delivered by it is final there is no choice other than accepting it. He was right on money. The history of the world is replete with cases of miscarriage of justice as well as the rectification of the injustices at a later stage of the history.
The courts around the world are supposed to avoid getting embroiled in political issues because such forays invariably produce controversies and lower the prestige of the judiciary itself. This is exactly what has happened in the wake of the verdicts delivered in the Panama case, disqualification of Imran Khan case and the latest one striking down the Electoral Reforms Act 2018 by the court. The constitutional and legal brains feel that verdicts delivered were not marvels of jurisprudence and the judiciary had violated all the internationally recognized principles of jurisprudence and in the last case had also encroached upon the powers of the parliament by creating a new law which it was not competent to delve into. The reaction to these decisions by the affected party was very much expected because of the way the cases were handled and verdicts delivered. Unfortunately the judiciary has been the loser as far as public faith in it as neutral arbiter of law is concerned. There is a permeating perception that the judiciary had indulged in the witch-hunt of a particular party and its leadership. The judiciary may not have been part of any conspiracy to do so but the fact remains that the decisions given by it have given birth to many misgivings. It is amply demonstrated by the exponential increase in the popularity of the PML (N) and the support that the narrative of the party has received though victories in the by-elections, particularly in Lodhran.
No doubt the verdicts delivered by the judiciary have to be implemented but nothing can be said with certainty about their repercussions and impact on the political landscape of the country. The portents nevertheless are not very encouraging. In the on-going battle between the major political party and judiciary nobody is prepared to back-off and there are visible signs of judiciary fighting the war on its own chosen turf. The CJ during an unscheduled visit to Islamabad High Court while addressing the lawyers said “I am working to eradicate social menaces and striving for resolution of basic human rights. I want provision of clean drinking water to everyone, clean atmosphere, free of cost treatment at hospitals, good rates to the farmers for their yields and equal and just treatment with every citizen. These are the focal points of my struggle” Well nobody in his right mind can differ in regards to the resolution of the issues indicated by him. But the problem is it is not the job of the Chief Justice to wage a struggle for having those objective realized.
— The writer is freelance columnist based in Islamabad.