Despite inheriting constitutional democracy, Pakistan believes that the constitution can be separated from democracy. To elaborate, the constitution can be manipulated without impacting democracy.
In recent days, there was an effort to pass a constitutional amendment “in a way” that assumed democracy and its norms would remain unscathed. The modus operandi adopted was shocking, as it was reported that children, daughters, and women of certain legislators were harassed and kidnapped to force their male counterparts to vote for the proposed amendment. The state’s machinery was used to accomplish this. That Pakistan could stoop so low was unimaginable. Fortunately, the proposed bill could not be presented in Parliament. Any such day would have marked a black day.
Various drafts of the botched amendment circulated. Among them, one point was common: there was an attempt to dilute the powers of the Supreme Court (SC), making it subservient to parliamentary oversight. The passing of such an amendment would have plunged Pakistan into a new crisis. The perpetrators forgot that the economic crisis was still ongoing.
Nevertheless, there is an obverse side to the story. While the Objectives Resolution, which is now part of the 1973 Constitution, ensures the independence of the judiciary, several acts of the SC have fallen squarely beyond its constitutional mandate. Events unfolding after 2014 provide ample examples to illustrate why most politicians (as legislators) have run out of patience. The SC delivered incorrect judgments and undermined the mandates of elected governments. In this regard, there are three main reasons that have lowered the prestige of the SC.
First, a Chief Justice (CJ) of the SC was instrumental in delivering politically motivated decisions and then attempted to mitigate the damage by involving the SC in public works. Respect was sought in the ruins of hospitals. In a spree to undertake public works, the SC also took upon itself the task of constructing a dam. In fact, the SC was found lacking any mechanism for internal accountability. Engaging in public works was as feeble an excuse as the imposition of martial law in 1999 in the name of eradicating corruption from society. Apparently, the SC learned from the army how the violation of the constitution could be justified.
Second, the discretion vested in the chair of the CJ to pass decisions based on a monopoly over constitutional interpretation remained a point of concern. The inclusion of like-minded judges to support the CJ added insult to injury. This bias degraded the SC to the extent that the decisions of a bench hearing a writ petition became predictable. The judges were studied more than they studied the law. Predictability marred objectivity. Several times, the constitution was deliberately misinterpreted to serve a political cause, rather than justice. This skewed interpretation benefited certain politicians at the expense of others.
Third, the SC attempted to substitute the parliament, rather than complement it. An extended justification was that it was merely judicial activism to address a political deficiency. In the name of judicial activism, the SC assumed the role of filling political gaps, rendering the parliament incapacitated. The SC overlooked the fact that, based on general elections, there was a political system in place meant to address any given political inadequacy. Furthermore, the judges were lawyers in robes meant to decide on legal matters, not to compensate for the political shortages of a sitting government. Neither lawyers nor judges are trained to improve a given political environment; their training is focused on dispensing justice. When judges falter in this ordained responsibility, efforts are made to curtail the powers of the SC, impinging upon the precincts of parliament. One solution lies in establishing a Federal Constitutional Court.
Generally speaking, it is now evident that politics has infiltrated all institutions of the state, whether it be the judiciary or a subordinate part of the executive, the army. Perhaps, the parliament is now lacking in political substance. Every CJ and Chief of Army Staff attempts to leave behind a legacy, which could be both substantial and unprecedented. A yearning to “do something big and different to be remembered by posterity” has impacted both the higher judiciary and the army. This longing has overshadowed the parliament, which now spends its time trying to escape the grip of accountability. Politics has also undermined the prospects of the National Accountability Bureau (NAB), which has become a partner in crime. The SC, army, and NAB create a triangle that constrains the parliament and robs it of its legitimate powers to govern the country.
Decades ago, one of the primary reasons for economic development was the establishment of infrastructure, which is the lifeblood of any economy. Since 2014, any effort to lay infrastructure has been condemned, overlooking the fact that infrastructure would stimulate fast and sustainable economic growth. Critics have refused to learn from China’s experience in progressing through infrastructure development. Now, Pakistan is perplexed as to why its economy is not expanding. Economic uncertainty has left little for spending on infrastructure expansion.
Another concern is the future of the Islamabad High Court (IHC), whose judges have recently taken a stance against installing devices by spy agencies to monitor and record the activities of judges. Decades ago, jackals also roamed the streets of Islamabad at midnight. The midnight jackalism aimed at controlling the IHC has challenged the judiciary. Appreciably, Justice Babar Sattar remains defiant.
In summary, while the interests of the SC’s judges in politics are known, any act of subjugating the judiciary to parliament will be devastating. While the independence of the judiciary must be ensured, the recent history of the SC calls for a curtailing of its overreach. Where the balance lies remains to be seen.
Dr Qaisar Rashid
The writer is a freelance columnist. He can be reached at qaisarrashid@yahoo.com