Addressing a Pakistan Day ceremony in Lahore last week, Chief Justice of Pakistan Mian Saqib Nisar ruled out the possibility of the much-anticipated ‘judicial coup’ in Pakistan after making it quite clear that there was no such thing as ‘judicial martial law’ in the constitution. He also pledged to not let democracy derail in Pakistan. This unequivocal ‘assurance’ from the country’s top judge regarding the future of democracy is certainly significant as there are currently a lot of speculations and doubts about the continuance of the democratic process in Pakistan. In fact, Pakistanis have become accustomed to these sorts of assurances and guarantees offered by individuals holding various positions of authority in the country. Various army chiefs have frequently been making similar statements about the future of democracy. The CJP’s recent statement about democracy is equally important and relevant as the superior judiciary is now considered an integral part of the country’s new de facto power structure in which the apex court is also calling the shots along with the executive and the military establishment.
Generally referred to as a ‘power troika’, there has been a triangular power structure in Pakistan in 1990s. The president, prime minister and army chief used to be the three components of this so-called troika. The 18th constitutional amendment passed by the Parliament in 2010 eventually resulted in deconstructing this power troika in the country. Through this constitutional amendment, the extraordinary powers of the president, namely the power to dissolve National and Provincial Assemblies, were taken away. However, no sooner did the old troika disappear than there emerged another power troika replacing the President with the Chief Justice of Pakistan. Being part of the new power troika, the apex court can not only scrutinise the qualifications and conduct of the parliamentarians but also can show a prime minister the door. At the same, the apex court is also performing acts which used to be within the exclusive domain of the executive branch of the government in the name of protecting fundamental rights of the citizens. Many people are also viewing this ‘judicial activism’ as mere an instrument to advance the institutional agenda of the military establishment in the changed political cum constitutional scenario in the country.
Former CJP Iftikhar Muhammad Chaudhry played a pivotal role in evolving the new power troika. Having been restored as the CJP in March 2009 in consequence of a so-called rule of law movement launched by the legal fraternity and the civil society, he just chose to act in an authoritarian fashion as the country’s top judge. He visibly extended the scope of Article 184(3) of the Constitution to take cognizance of the diverse legal and administrative matters. He extensively exercised the extraordinary constitutional powers of the apex court to take a large number of suo motu actions, giving rise to his personalised judicial activism in the country. He disqualified the former Prime Minister Yousaf Raza Gillani. He also gave the PPP government a hard time on various corruption issues. Later, in the wake of Panamagate case, the apex court just chose to revive the Justice Iftikhar Chaudhry’s legacy. Now It has disqualified PML-N leader Nawaz Sharif and PTI’s former Secretary General Jahangir Tareen for not being ‘Sadiq and Ameen’ in accordance with Article 62(1)(f) of the Constitution.
In addition to disqualifying legislators, the apex court has also started extensively exercising its suo motu jurisdiction. For the last few months, the apex court has taken a large number of suo motu actions on a variety of issues ranging from the contaminated drinking water and substandard milk to extra-judicial killings, rape-cum-murder incidents of minor girls, illegal constructions, blockade of roads for VVIP movements, security barriers in public streets, Axact fake degree scam, laundered money of Pakistanis in foreign accounts, sale of substandard and expensive coronary stents, high fees charged by private medical colleges, and lack of health facilities at public hospitals, police encounters in Punjab etc. At present, the executive is considering this judicial practice as an encroachment upon its legal authority.
Under the new power structure, the military establishment and the judiciary are exercising considerable control over the executive. Therefore, the status and role of the executive is visibly marginalised. The extended concept of national security has resulted in extending the institutional domain of the military in Pakistan. The military exclusively shapes the contours of the county’s national security policy. It determines the national defence strategy. It formulates the foreign as well as regional policy. Now it has also started playing an important role in ensuring the internal security. Similarly, the apex court has also extended the scope of constitutional jurisdiction on the basis of wider interpretation of the fundamental rights of the citizens in Pakistan. It can intervene in the affairs of the executive on the pretext of preserving fundamental rights guaranteed by the Constitution.
As a matter of fact, the executive is equally to be blamed for eroding its legal authority in the country. The administrative inaction and incompetence of the executive created a vacuum which has readily been filled by the superior judiciary. One just wonders what stops the executive from taking measures to address the grievances of the ordinary people as doing the apex court. In a parliamentary form of government, the executive acts as the representative of the popular sovereignty. Therefore, it can, by no means, afford to neglect the will and welfare of the people. If it does so, it will certainly lose the popular support. In Pakistan, the successive civilian governments have been promoting their selfish and narrow political interests at the cost of the collective interests of the people. At present, PML-N government looks hardly concerned about the welfare of Pakistanis. Its leaders and ministers are just trying to make ousted Prime Minister Nawaz Sharif politically active and relevant in the country by hook or by crook.
At present, there is a tug of war between the executive and the judiciary over establishing their institutional supremacy in the country. There is also a considerable mistrust between the two important organs of the government. Therefore, as in the 1990s, the newly-emerged dear facto power structure in Pakistan is rather volatile which is unlikely to sustain for a long time. Indeed, this assumption of extraordinary powers by the superior judiciary is absolutely unacceptable to the executive. Disgruntled PML-N leader Nawaz Sharif has openly rejected his disqualification verdict. Now he has announced his ‘movement for justice’ which is being viewed as a campaign to contain the rising influence of the judiciary in the national affairs. Therefore, if PML-N succeeds in coming into power after the forthcoming general elections, it will certainly try to clip the superior judiciary’s wings.
It is a fact that the so-called power troika in Pakistan in 1990s has not done the country any great service. This power structure has been instrumental in undermining the democratic process in the country. The new power troika is also not likely to help us improving things in Pakistan. It would only give rise to more administrative anomalies and ambiguities. The conflict between the executive and the judiciary would be harmful for Pakistan. Therefore, all state institutions must learn to remain within their respective constitutional domain. Constitutionalism is the only way forward. Making statements in favour of democracy would not suffice. Indeed, actions speak louder than words.
The writer is a lawyer and columnist based in Lahore.