Since the parliament represents the will of the people and is the architect of the constitution it is rightly said to be the mother of all state institutions which are created under the constitution promulgated by it. According to constitutional arrangement, the judiciary is the ultimate custodian of the constitution. The judiciary safeguards the fundamental rights of the people as prescribed in the constitution and also makes sure that all the state organs function strictly in conformity with the constitution and the laws enacted by the parliament.

The status of custodian of the constitution bestowed on the judiciary in the constitution also makes it obligatory on the members of the judiciary to remain within ambit of the constitution and law while adjudicating in the cases brought before them and refrain from committing indiscretions that vitiate the spirit of the constitution or the prevalent law relevant to the issue brought before them. A conscious or deliberate disregard of a constitutional mandate or requirement is nothing short of “subversion” of the Constitution which amounts to “High Treason” under Article 6 of the Constitution.

Unfortunately, the judiciary in Pakistan has been one of the major tormentors of the nation by delivering verdicts that not only represented willful breach of the constitution but have been instrumental to perennial political instability in the country undermining the avenues pivotal to strengthening democracy in the country. Consequently the country had to endure devastating tragedies that have shook the very foundation of the state. Under the doctrine of necessity, the judges not only validated military coups but also allowed the military dictators to make changes in the constitution according to their will in clear violation of Articles 238 and 239 (5) which state that the amendment in the constitution will be made by the parliament and that the amendment made by the parliament cannot be challenged in any court of law. Article 239 (7) further says “For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of parliament to amend by way of addition, modification or repeal any of the provisions of the constitution.

Apart from the use of the doctrine of necessity the judges on different occasions have also given decisions by violating the constitution which they are supposed to protect. Since the emergence of judicial activism in the wake of the movement for restoration of judiciary several verdicts have been delivered in breach of the constitution with diabolical impact on the political landscape of the country. The removal of Nawaz Sharif in the Panama case is a classic example of a travesty of justice in which he was convicted on the pretext of an issue which never formed the subject of the petition and the judges invented a way of their own to sack him to implement the conspiracy they were part of. The opinion rendered by Bandial-led court on Article 63 A of the constitution virtually amounted to re-writing the constitution as was also pointed out by the two dissenting judges who maintained that there was no need for any interpretation of the Article as there was no ambiguity in it. As a result of this opinion, a political change was orchestrated in Punjab clearly indicating partisan role of the judges.

The judgment rendered with an 8-5 majority by the SC on the allocation of special seats to the parties in the parliament is another marvel of travesty of justice in which a particular party has been given relief although it was not a petitioner in the case. It is pertinent to note that it was the Sunni Ittehad Council that filed a petition in the Peshawar High Court against the decision of ECP for allotting special seats to parties that it contended belonged to it. However, the court upheld the decision of ECP maintaining that it was in conformity with the Election Act 2017. Sunni Ittehad approached the SC for quashing the verdicts of the Peshawar High Court as well as the ECP. PTI figured nowhere in this equation. Two dissenting judges Amin-uddin Khan and Naeem Akjhhtar Afghan rightly maintained that in carving out relief in these proceedings for PTI the court would have to travel beyond the jurisdiction conferred by Articles 175 and 185 of the constitution and would also have to suspend Articles 51, 106 and 63 of the constitution and section 104 of Election Act 2017 along with relevant rules. As is evident the verdict defied commonsense, internationally recognized principles of jurisprudence, the constitution of Pakistan and the Election Act 2017. Review petition were filed against the decision but they have not been fixed so far. Now the SC has issued a detailed judgment on the case urging the ECP to implement the verdict threatening that non-compliance would have consequences. I am not a lawyer or a constitutional expert but after consulting some legal minds I have come to the conclusion that the SC should not have issued detailed judgment until the finalization of the case through disposal of the review petitions.

In the meanwhile, the government has made amendments in the Election Act 2017 to nullify the grounds on which the SC judgment relied for allotting seats to PTI. The changes were made with a retrospective effect. There are several judgments of the SC in which it has acknowledged the power of the parliament to promulgate laws with retrospective effect. Article 239 (7) empowers the parliament to do so.

The ECP now finds itself in a fix. The emerging situation has brought the judiciary face to face with the executive and the parliament. There are indications that the government is contemplating to take the case of allocation of seats to parliament. It is indeed a very alarming situation and demands that the judges who act against the constitution and exhibit politically partisan conduct must be stopped in their tracks and measures may be adopted to prevent the recurrence of situations like at present. Enough is enough. The prevailing stalemate justifies the argument for the establishment of a constitutional court to prevent a constitutional crisis in the country.

In my opinion the present case also qualifies for a reference to the Judicial Council against the eight judges who delivered this verdict in breach of the constitution. There is another way out of this quagmire through which this crisis can be resolved. The judges may take refuge behind the changes made in the Election Act 2017 under Article 239(7) by the parliament accepting its supremacy. The judiciary as custodian of the constitution is under greater obligation to uphold its sanctity and show unqualified adherence to it.

Malik Muhammad Ashraf
The writer is a freelance columnist. He can be reached at ashpak10@gmail.com