Supreme Court’s (over)steps
“A black day – beginning of the end of democracy!” This is how Asma Jahangir, human rights activist and former president of the Supreme Court Bar Association, has reacted to the Supreme Court’s show cause notice to Prime Minister Raja Pervaiz Ashraf for not writing a letter to the Swiss authorities to prosecute the president on charges of graft.
The ball has been set rolling to disqualify the prime minister – second within a span of few months – for not complying with the apex court’s orders.
One can take issue with Asma Jahangir’s dire prediction that democratic system is now unraveling. Nonetheless those who had thought that better sense would prevail within the government as well as the judiciary have been sorely disappointed.
While the attorney general was seeking more time to “find a way out” of the impasse, the apex court seeing it merely as delaying tactics ominously observed that it would not budge an inch from its judgment on the defunct National Reconciliation Ordinance.
What had probably miffed the honorable judges was the government’s defiant note a day earlier that while remaining within the confines of the constitution it would resist new centers of powers confronting the parliament.
It is obvious that come what may, the prime minister is not going to write to the Swiss authorities on the oft-repeated pretext that the president enjoys immunity under the constitution.
Senator Aitzaz Ahsan thinks that the Supreme Court at times has overstepped its limits beyond the ambit of the constitution. Aitzaz, who defended former Prime Minister Yousaf Raza Gilani against his dismissal by the Supreme Court, has claimed in an interview with the BBC that in the last 500 years, since the emergence of the nation state, not once has a government handed over its head of state to be prosecuted by another government.
The senator is one of those jurists who were perhaps the closest to Chief Justice Ifthikhar Chaudhry during the days of the struggle for his restoration. He played a pivotal role in the restoration of a free and independent judiciary and was incarcerated by Musharraf for defying him. Hence his comments cannot be dismissed merely as fulminations of a lawyer who just lost his case.
The question that begs an answer is what is ailing the system? Is it a clash of institutions or of inflated egos? Whatever way one looks at it, the standoff has dire consequences for the system.
The apex court thinks that there is no danger to the system even if prime ministers come and go in quick succession. After all, heavens did not fall when Gilani had to quit in the light of the Supreme Court’s verdict.
Nonetheless it is not a joke to give marching orders to prime ministers at the drop of a hat. The courts cannot make ‘my way or the highway’ as the bedrock of their decisions and observations.
They have to adopt ways to strengthen the system, not weaken it. After all, at the end of the day an independent judiciary is a function of a flourishing democracy.
Judicial activism is not a phenomenon germane to Pakistan. In other democracies, including that of India, proactive courts can be problematic for the executive. But, not to the extent of packing off governments. Since judges are not elected officials answerable to the electorate, judicial restraint is as much a cardinal principal of democracy as judicial activism.
Recently, the US Supreme Court’s verdict on the Health Care Law is an epitome in judicial restraint. The court, contrary to expectations, upheld the law in three opinions – one by Chief Justice John G Roberts who is a conservative nominated by the former Bush administration, one representing the court’s conservative members and one by courts liberal members. They upheld the law but set boundaries on the powers of the Congress to impose taxes.
Justice Robert’s judgment plainly states that the court exists in a political world, but the Congress is due to the court’s deference. Stating that the voters have the ultimate powers, the prerogative to make policy judgments, he ominously adds, “Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”(Emphasis added).
The perception amongst the ruling party as well as a fairly large swath of the legal fraternity that the apex court in Pakistan is overstepping its limits and is biased towards the PPP leadership needs to be corrected.
As is evident by numerous examples judiciary is not a monolithic entity thriving in a legal cocoon. Previously, it has been playing politics by legitimizing every usurper and coupsters who trampled the constitution under his jackboots. Now the pendulum has however dramatically swung the other way.
The political opposition is deriving vicarious pleasure from the fact that the ruling coalition has painted itself in a corner with the judiciary. But even they know that the judiciary cannot run the administration in the name of activism.
Mian Nawaz Sharif, the born again champion of an independent judiciary, when he was prime minister, could not co-exist with a minimally proactive chief justice, Sajjad Ali Shah.
The Chairman of the Indian Press Council and former judge of the Supreme Court of India, Justice Markandey Katju’s recent remarks made in an article penned by him in The Hindu about Pakistan’s Supreme Court created quite a stir.
These remarks are worth repeating here: The constitution establishes a delicate balance of power, and each of the three organs of the state – the legislature, the executive and the judiciary – must respect each other and not encroach on each other’s domain; otherwise, the system cannot function.
It seems to me that the Pakistani Supreme Court has lost its balance and has gone berserk. If it does not come to its senses now, I am afraid the day is not far off when the constitution will collapse, and the blame will squarely lie with the court, and particularly the chief justice.
This is a harsh denouement. It smacks of the patronizing attitude amongst the elite across the border about Pakistan. No one, including the military, the judiciary or for that matter the politicians, are interested in derailing the incipient democratic system. Nevertheless the stakeholders should give serious thought to the views expressed by prominent jurists both here and abroad.
The writer is Editor, Pakistan Today