A plea for judicial restraint

Lest the heavens fall

During the hearing of the NRO implementation case on July 25 Justice Khosa had observed that “the gap between the stated positions of the two institutions is not impossible to bridge and we wish him (AG) well in his efforts to bring acceptable solution to the pending issue.” The hopes roused by the remark have, however, not been fulfilled. The court is adamant on the prime minister writing the Swiss letter or facing dismissal. The PPP leadership is not agreeable to carrying out the order. With little hope of the two sides reviewing their respective positions, Pervez Ashraf’s fate is going to be no different from that of his predecessor. The attorney general has assured the court that the government was taking serious steps to resolve the issue and more time was needed to arrive at a settlement. If no out-of-the-box solution is found, the prime minister would in all likelihood be sent home in a couple of sittings if not on August 27.

While the government has filed a review petition against the striking down of the new contempt law, it has also announced that it would resist new centers of legislative power through legal and constitutional means. The only constitutional course open to the government is to appeal to the court which it is doing. It may also decide to take the matter to parliament which would be of little help. The ruling coalition does not have the two thirds majority to enact a constitutional amendment to restrict the scope of judicial activism. While some of the PML(N) leaders privately agree that the apex court is encroaching on the parliament’s turf, election rivalry stops the opposition party from supporting the PPP on the matter.

The perception that the SC is transcending its limits is not confined to the PPP alone. The court’s insistence to interpret the otherwise unambiguous constitutional provisions like immunity for the head of state has been criticized by prominent jurists who maintain that the court has abandoned the doctrine of judicial restraint. The court does have the power to strike down the primary legislation comprising acts and ordinances. In the past, however, the power was exercised rarely and only in cases where fundamental rights specifically enacted in the Constitution were directly affected by the offending statute or law. There is a need on the part of the court to realize the long term implications of the perception. While it can still send another PM home, the exercise of powers with abandon could in times to come bring together all major parties on the single point of curbing the apex court’s powers.