The hopes rekindled after the restoration of the judiciary as a result of lawyers movement in regards to judiciary functioning independently strictly within the confines of law as enshrined in the tri-chotomy of powers in the constitution, regrettably have been dashed to the ground. Instead it gave birth to judicial activism that transformed the courts into poplar courts playing to the gallery abandoning their character as a court of law. The SC in particular seems obsessed with the savior ‘syndrome’ relishing its self-assumed notion of possessing the power to overlord the executive and the parliament.
The tradition set by former CJ Ifitkhar Muhammad Chaudhry not only continues but has gained more intensity and the present CJ makes no bones about claiming that when the executive fails to deliver the court would intervene. The same logic has been used and practiced by the military dictators. The country has witnessed the emergence of judiciary as a new ‘saviour’, the concept which has been the bane of democracy taking root in the country as well as a root cause of one state institution trespassing into the domain of the other in complete disregard to the spirit of the constitution.
The jurisprudential debate over what the judges ought to do in the courts, has largely subsided across the world. It is now agreed that judges do not declare what the law should be but only what it is. In other words, judges are not legislators or law makers but adjudicators interpreting the text of the law laid out by legislators and stating what the text means. Justice Oliver Wendell Holmes Jr. of the US Supreme court during the hearing of a case remarked ’ this is court of law, young man, not a court of justice’. He was not being flippant. He actually reiterated the limited scope of authority that a judge wields in a country that incorporates separation of powers through a written constitution.
There are host of cases that prove judiciary having over-stepped the constitutional Rubicon and given decisions which in itself constitute breach of the constitution. The challenging of eighteenth amendment by the judiciary particularly the clause pertaining to appointment of judges by the judiciary was tantamount to the breach of the Article 239 (5)(6) constitution. It unequivocally said “No amendment of the constitution shall be called in question in any court on any ground whatsoever. For the removal of doubt it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora( Parliament) to amend any of the provision of the constitution”.
The judiciary under the current CJ has given also given a number of decisions which completely disregarded the internationally recognized principle of jurisprudence and also vitiated the spirit of the constitution, which the judiciary is supposed to protect. Panama is a classic case in which the judiciary undermining the constitutional powers of other state institutions and Acts of parliament that created accountability and investigative apparatus of the state, chose the role of the court of first instance notwithstanding the fact that being the apex court its original role was to act as appellate court. The decision given in the case was not a marvel of jurisprudence and therefore besides coming under harsh criticism by the legal and constitutional experts also became the subject of political debate and strong reaction by the former Prime Minister and his party.
The former Prime Minister and PML (N) were not entirely wrong in reacting to the decision as they did because the court not only put aside the principle of ‘restraint’ but also disqualified him on the ground that was not prayed by any of the petitioners. Even the biggest opponent of the PML (N) Imran Khan and the main petitioner has of late in a TV interview admitted that the verdict in the Panama case was very weak because Nawaz Sharif had been disqualified on the basis of ‘Iqama’ whereas the case was about Panama. That surely endorses the narrative of the former Prime Minister and his party. In my discourses on the Panama case during its hearing I persistently maintained that it was a case of political nature and the SC should not have entertained it in the first place. I also maintained that whatever the decision the judiciary it would not emerge unscathed from it. That is exactly what happened.
Then the judiciary in the disqualification case of Imran Khan which was exactly of the same nature as that of Nawaz Sharif, gave him relief instead of applying the principle that it set in the latter’s case. The legal and constitutional experts again took umbrage at it. It created an impression of selective justice in case of Imran Khan and witch-hunt in case of Nawaz Sharif.
The latest decision of SC debarring Nawaz Sharif from heading the party was very much expected in the backdrop of the controversy and the heat generated by earlier decisions of the SC. In the opinion of constitutional experts the apex court has again failed to exercise restraint and exhibited the propensity to trespass into the domain of the powers of the parliament. They contend that the court by declaring that the provisions of section 203 and 232 of Election Act 2017 are liable to be read, construed and interpreted subject to the provisions of Article 63 and 63, had actually made a new law which it was not competent to promulgate. The SC being infallible because it is final has no room to make such mistakes that constitute violation of the constitution.
There might not be any grand conspiracy at work here as conceived by certain quarters but the do-good savior instinct of SC reinforced by its presumption that it is a ‘people’ court endowed with epoch making opportunity to inject morality into the polity, is dragging the court into the political shrubbery. The need for rule of law and an independent judiciary can never the overstated. But the SC must tread carefully. While controversy might be a necessary corollary of politics, it does not belong to the halls of justice.
Judiciary is the most sanctimonious institution of the state on which its edifice is built. Therefore it has to dispense justice within the precincts of law and constitution to win the trust of the public. Justice Stephen Breyer of the US Supreme Court was right on money to have said ‘Public trust does not follow automatically from the existence of a written constitution. It must be built, and once built it must be maintained.
Unfortunately our judiciary has not been able to build the public trust. Those who believe in the constitutional rule and democracy as a system of governance are flabbergasted by the permeating tug of war among the state institutions and pondering where are we headed to? If the institutions including judiciary fail to opt for retreat, it could lead to disastrous consequences at a time when the country was engulfed by diabolical challenges and security threats.
The country has witnessed the emergence of judiciary as a new ‘saviour’, the concept which has been the bane of democracy taking root in the country as well as a root cause of one state institution trespassing into the domain of the other.