Uphold constitutional supremacy and unite Pakistan
WHEREAS, judicial activism is an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions. Since the very formulation of our first constitution in 1956 and the incorporation of second constitution in 1962 respectively, there has been an innate conflict between the jurisdiction of the respective functions of the legislature and the judiciary.
The precise legal basis of the power of the judiciary to pass upon—the constitutionality of Acts of legislature via doctrine of necessity— encapsulated in the case, federation of Pakistan vs Maulvi Tamizuddin)– has been a bone of contention in various constitutional debates accompanied by political skirmishes in the annals of our constitutional history.
Convincingly enough, a balanced constitution is the one in which power is equitably shared amongst different organs of the state, thereby arranging institutions in relation to one another and the governed so as to enable good government over time. Comparatively, the constitution of 1973 is the most balanced constitution—as it is the embodiment of democratic, federal and human values.
The Constitution of Pakistan in 1973, created an independent judiciary which is vested with the power of judicial review to determine the legality of law and any executive action. Judicial Review is an essential part of Rule of Law. Judicial review involves determination not only of the constitutionality of the law, but also of the validity of administrative action. Given this argument, the actions of the state public authorities and bureaucracy are all subject to judicial review; they are thus all accountable to the courts for the legality of their actions. The Power of judicial review is granted under article 199 of the constitution of 1973.
Moreover, Judicial activists argue that under Article 184(3) of the Constitution, the Supreme Court of Pakistan has the authority to exercise suo motu powers to take action on a matter if the issue at hand has two aspects i.e. if it is of public importance and if there has been a violation of fundamental rights as per Chapter 1, Part II of the Constitution. Yet, the doctrine of legal pragmatism bodes that while exercising this power, the court must observe judicial restraint not to meddle in the affairs of Parliament, and the executive, as well. Probably, against this backdrop, the Pakistan Bar Council demands a clear criteria regarding the suo motu jurisdiction, also a right of appeal against a suo motu notice.
On the other hand, the proponents of judicial activism argue that currently our apex court is following the constitutional spirit imbibed in the Constitution of the United State, which empowers the Supreme Court to define and maintain the doctrine of the sovereignty of the people; the doctrine of the amenability of the Constitution; the doctrine of a dual form of government; the doctrine of the separation of governmental powers,; the doctrine of personal liberty, and most importantly, the doctrine of the supremacy of the Supreme court , while exercising this function, the apex court has the de jure power to set aside an act of Congress, or of the President.
Arguably, the said power regarding the suo motu has been criticised for several reasons. Importantly, in suo motu cases, the core concept of separation of powers is disrupted because the courts intrinsically end up—directing and monitoring the functionality of the executive—by exercising its judicial activism through suo motu cognizance. In other words, the judiciary directs the executive to perform its functions efficiently when the concept of separation of powers states that the organs of governance shall be kept separate but work together.
Still, some legal experts opine, the Supreme Court orders (April 13, 14)–directing the State Bank of Pakistan to release the funds for holding elections in Punjab, and subsequently suspending the implementation of the Parliamentary bill regarding the Supreme Court Procedure of Practice, sent to the President of Pakistan — being ultra vires, are tantamount to superimposing its institutional efficacy over the other institutions.
And most importantly, given the justification of the arguments tabled by the doctrine of balance of power and jurisdictional autonomy, it is argued that “courts should be reluctant to permit deviations from constitutional norms. Approval must be reluctant because courts, in reviewing a state necessity claim, must consider the legitimacy of readjusting fundamental political, social and legal values.’’ Impartially, this judicial reckoning must be made in cases where the state action affects individual rights as well as in cases involving changes in the governmental structure.
And yet, there is a growing conviction in our legal fraternity (albeit divided) that all institutional tussles will be subsided if the Parliament’s legislative supremacy protected under Articles 66 and 63 of the Constitution is fully honoured. Nonetheless, the blowing winds of legal schism on the matter of our national interests may harbour unhealthy consequences. Obviously, the quest for power struggle (Parliament resolutions versus Supreme Court orders) between the legislature and superior judiciary is not only alarming to the sanctity of our constitution, but also fatal to the stability of our state.
The ongoing constitutional deadlock evidenced by the blowing winds of legal schism is excruciatingly painful for our nation. The growing divisions within the institutions—the legislature and judiciary set a very wrong precedent. In the light of the above cited arguments, it is humbly solicited that the most reverend judges of the Apex Court, as well as those policy mangers sitting in the government and the people’s representatives in Parliament, all should form an accommodating liberal approach since any attempt to undermine the legal and moral constitutional authority of the other institution, is not in our national interest. The Judiciary must unravel the various considerations paving the way for a pragmatic solution of the current crisis.
In order to promote intra and inter institutional harmony, the government should establish a forum to resolve crisis via an intellectual discourse. To save the ideological foundations of Pakistan, we must curb the ongoing race for institutional supremacy by honouring principle of the triichotomy of power between the legislature, executive and judiciary. Make no mistake, if Parliament is the symbol of a collective and cohesive voice of the people, the Apex Court is the symbol of our national prestige and the abode of legal acumen. —Concluded
—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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