Uphold constitutional supremacy and unite Pakistan-1
UNQUESTIONABLY, the ongoing developments of constitutional -cum-judicial crisis on the national scene are not only dejecting but also excruciating reflected by the growing atmosphere of judicial polarization accompanied by an action-reaction trajectory. There can be no denying the fact that in the history of nations and national building, it is primarily the constitution and its sanctity that plays a pivotal role. Thus, while upholding constitutional supremacy, nations cannot overlook the principles of judicial primacy of the Apex Courts as well as the constitutional supremacy of their respective legislatures– the pivot of social justice and the abode of people‘s representatives. Today Pakistan faces the challenge to rebalance the role of its institutions: the executive, the legislature, and the judiciary.
Needless to say, the apex court in any country is the hallmark of its justice system, but at the same time, the Parliament is the cradle of people’s jurisdiction in a democratic system .Yet, given the history of constitutional vicissitudes, unfortunately, since its independence, Pakistan remains unable to resolve this fundamental issue of judicial impartiality in its state functioning, which has destabilized it politically, undermined the rule of law, and consequently weakened state institutions, and damaged the economy.
Since 2007, it is alleged that the superior judiciary has propelled the forces of judicial activism by moving beyond its defined jurisdiction limits– just arbitrating political disputes to playing an intervening role of its own within the political system– constraining the authority and vetoing the policies and actions of elected institutions in order to shape politics and policies in line with its own favourite fixtures.
Traditionally viewing, Pakistan’s Supreme Court has played an increasingly significant role in regulating our political and policymaking processes. Generally this expanding pivotal role of judicial power vests the court’s jurisdictional primacy under the public juris doctrine. The judicial power can decide on the constitutionality of laws and declare invalid any exercise of power that is not authorized by law and conflicts with the constitution. This is known as a judicial review. Under Article 184(3) of the Constitution of Pakistan, the Supreme Court can take action by exercising suo motu power. Nevertheless, some jurists still argue that an unbridled practice of using the suo motu notices has given birth to a state of hyper judicial activism in Pakistan.
However, in the absence of a petition, the suo motu notices intrinsically refer– to court taking up an issue of public interest (while invoking the epistolary jurisdiction) — on its own accord. Given the past practices, though the suo motu power rests with the Chief Justice of the Supreme Court, its over use– in recent years—has become a crucial issue drawing a heated debate in both public and governmental circles. Some legal experts argue that its selective and political use compromises the writ of justice and fundamental rights thereby raising some pertinent legal questions.
Though the Constitution sets clear procedural requirements to justify the invocation of suo motu powers, the judiciary has shown its propensity for relaxing these prerequisites to “make general recommendations” to other public organs (Manzar, 2018). Although these “recommendations” are generally made under the pretence of safeguarding inalienable human rights, leading legal experts are of the view that they merely serve to super-impose judicial will over other state entities.
Actually, these views hold much credence within the judicial circles, with jurists such as Justice Ramday blatantly admitting in Chief Justice Iftikhar Chaudhry v President of Pakistan that “courts are (more) inclined to extend their jurisdiction instead of curtailment”. The brazen acceptance of such jurisprudential encroachments has elicited has some harsh condemnation from critics of suo motu powers.
Nonetheless, the critics of the current bill regarding the Supreme Court practice and procedure moved by the joint session of the parliament argue that the government is proposing to amend the rules of the Supreme Court– thereby deifying the role of the apex court itself. They raise the question mark—what if the court takes up a matter of parliamentary rules and procedure tomorrow and starts dictating how the parliament should conduct its affairs? Contrarily, the proponents of the bill think that it is the right time to create a check and balance system in the Supreme Court so that it should not supersede the other national institutions, particularly, the Election Commission of Pakistan.
According to the Federal Law Minister AzamNazir, Tarar, ‘’those who have any confusion regarding the bill “They should go and read the Constitution’s Article 191, which empowers parliament to legislate. The Supreme Court also made their rules according to the Constitution and law since 1980 and it is written on the preamble as well,” he said. This bill was a long-standing demand of the bar councils, which said that indiscriminate use of 184(3) should be stopped,” he added. Whereas, by forming an eight member bench with regard to the said bill sent to the President, the Supreme Court of Pakistan in its hearing on April 13 passed a short order holding that: prime facie the said bill of the Parliament is a direct interference in the court matters, which undermines the judicial independence.
Constitutionally, the doctrine of separation of powers between the executive, legislature, and the judiciary was argued by the French philosopher in his book ‘spirit des Louis’ (the spirit of the Laws) in 1747, two hundred before the creation of Pakistan. Montesquieu argued that when power is concentrated in the hands of a single person or a group of people, centrifugal forces take the command in government institutions, thus, to prevent to indulge in such a situation, he advised the demarcation of jurisdictional powers among the three state organs, the executive, legislature, and judiciary. True, a rule that cannot be bent will certainly be broken: Undeniably, Judicial reforms are the foundational moorings that form the threshold of a country’s a political or legal perspective.
Fairly speaking, in a constitutional democracy in which the various institutions of the state function in harmony with one another within the ambit of their constitutionally defined limits; in a compromised democracy– characterized by an institutional clash or disarray , the state institutions transgress the limits prescribed by the constitution and encroach on the domain of other state institutions through force or guile .Simply put, Parliament makes the rules, the judiciary interprets those rules while the executive implements them. To be continued
—The writer, an independent ‘IR’ researcher-cum-international law analyst based in Pakistan, is member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies, also a member of Washington Foreign Law Society and European Society of International Law. He deals with the strategic and nuclear issues.
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