Pakistan has turned seventy but it is still struggling to find the right direction to fulfill the objectives of independence. The vision bequeathed by the founding father in regards to the path that the country needed to tread for reinforcing the edifice of the state and earning a rightful place in the comity of nations with irreproachable credentials of a democratic and progressive Islamic state, regrettably lies in tatters. To say that Pakistan is at the cross-roads would be an understatement in view of the permeating situation on the internal front and the external security threats.

The sordid reality is that it is a self-inflicted catastrophe orchestrated through tug-of-war between state institutions to establish their ascendency over each other in violation of the constitution, repeated derailment of democracy by the military dictators and failure of the politicians to reform the existing system of governance that breeds a culture of graft, corruption and entitlement. But the most worrisome reality is that there is neither any realization on the part of the state institutions and the politicians in regards to the damage that has been done to the country due to their shenanigans nor are they prepared to change the course to arrest the drift of the country into a crucible of precipice. That reminds me of a stanza by an unknown poet which is a true depiction of the situation that Pakistan finds itself in. The English translation of those lines is ‘We are treading the same path and lowliness and there is a pal of gloom over the valleys and habitats. There is darkness on the horizon of the country but the villains are determined to continue with their shenanigans. I am sure the Quaid must be turning in his grave to see what we have done to the land of the pure that he created for us.

Unfortunately, the judiciary which is the most sanctimonious institution of the state in its capacity as protector of the constitution, fundamental rights of the people and dispenser of justice and also charged with the responsibility to ensure that the state institutions function within the constitutional parameters , itself has been the major violator of the constitution. The rot started when the martial law of Ayub Khan was validated under the invented doctrine of necessity and the same precedent was repeated during the later military coups. The judiciary has not only been validating military coups but has also been authorizing the dictators to amend the constitution notwithstanding the fact that only the parliament had the authority to amend it. Had the judiciary stood up to Ayub Khan and refused to validate his adventure, the country would have been saved of the traumas that it had to endure subsequently.

The lawyers movement that ultimately led to the restoration of judiciary sacked by the military dictator, transformed it from a passive and pliable assemblage of judges to an excessively assertive judiciary, ready to go to any extent, even in breach of the constitution, to throw its weight around; a phenomenon described as judicial activism. If my memory serves me right, the incumbent ECP Justice retired Sardar Muhammad Raza Khan in an article published in a national daily, while commenting on the judiciary under Iftikhar Muhammad Chaudhry, had concluded that it was not an independent judiciary. The constitutional and legal experts have been very critical of the newfound judicial activism. The judiciary has been trying to overlord the executive and the parliament. That trend seems to have further aggravated under the current CJP who relishes the spectacle of hitting the headlines by making statements that have political connotations, meddles in the domain of the executive and even has quashed the law enacted by the parliament. He seems in no mood of backing off, notwithstanding the fact that the assertiveness of the judiciary, which an eminent constitutionalist has described as judicial imperialism, has created a situation of confrontation between the state institutions. The judges speak through their decisions given in conformity with the law and legal precedents.

Some of the decisions given by the SC have also been instrumental to the permeating situation. The verdict in the Panama case disqualifying the former Prime Minister, not on the basis of the prayers made by the petitioners but on the basis of ‘Iqama’ has made the judiciary quite controversial. The eminent constitutional experts have repeatedly said that those decisions were not marvels of jurisprudence, rather all the internationally recognized principles of jurisprudence were pummeled through them.

In my columns during the Panama case, I had repeatedly maintained that the judiciary should not have accepted the petitions in the first place as it was a highly politicized case and the judiciary may not be able to emerge unscathed from it. That is what exactly has happened. Now the CJ is running around to offer explanations about the decisions and the conduct of the judiciary at public forums which is absolutely undesirable.

The retiring PPP senator Farhatullah Babar, in his farewell speech in the senate, truly reflected the sentiments of the people in regards to the conduct of the judiciary, when he warned against what he called politicization of the judiciary, lamented the emergence of state within a state and the helplessness of the parliament to arrest the downslide. He also cautioned that if judiciary persisted with its attitude, the 2018 elections may be a referendum against it.

The verdicts of the SC in the Panama and Imran’s case have surely not added to the prestige of the judiciary and people are not supportive of the rampant judicial activism. They have already given their verdict against SC decisions by supporting the narrative of Nawaz Sharif and casting their votes in favour of PML (N) candidates in the by-elections held after the verdicts, particularly the Lodhran by-election. Political analysts believe that the PML (N) narrative has assumed infectious dimensions and it was very much poised to win the 2018 general elections.

The CJ and the honourable members of the apex court are better advised to defuse the situation by exercising restraint and also to curb their propensity to overlord the executive and the parliament as the continuation of this trend would inflict incalculable harm on the state apparatus. That is also imperative for restoring the trust and confidence of the people in the judiciary as an impartial arbiter of law. Much is at stake at the moment. The state institutions must function within constitutional parameters to make the Quaid rest in peace.

 

n          The writer is a freelance columnist.