The judiciary’s love for power

PML-N government must beware of judicial overreach

Like a carnivorous animal that cannot change its man-hunting ways once it gets a taste of human flesh, a human being who once gets the taste of power will similarly not let go of it easily. Our judiciary is a case in point.

How else can you explain the Supreme Court’s taking suo motto notice of the GST tax, the pricing of petrol, ordering the immediate appointment of the PIA chief, declaring the postings and transfers of hundreds of civil servants null and void, and chiding the brand new government to act ‘democratically’ – when it was barely a day old.

As everyone knows that our whole justice system, from the lowest ‘kutchery’ courts upwards is a cesspool of corruption and inefficiency, with a black hole of pending cases. Yet our apex judiciary, abdicating its own duty to put its own house in order, rushed helter-skelter to take notice of the GST tax imposed by the government, as if it was in a contest with the government for control of executive power.

People have a right to ask exactly what all this judicial overreach and arbitrariness and all the Supreme Court notices and orders have actually achieved for the country or its people? Have they made any difference in the lives of the ordinary people? Have they economically benefited the people? Have they made the country more safe and stable? Have they made the availability of essential commodities, electricity and other basic items easier and less expensive? Has the overall economy of the country improved? Has the security situation in Balochistan and Karachi improved after its suo motto intervention?

Of course, the answer will be in the negative on all counts. On the other hand, the situation on the ground has undeniably further deteriorated in all of the above areas where the Supreme Court has intervened. The judiciary has wasted the country’s precious time and limited resources on myriad frivolous, non-productive suo motto notices, hearings, inquiries, petitions such as the Memogate or the NRO.

We all remember only too well how the judiciary in its pursuit of the NRO case put the government’s stability and the state’s viability at grave political risk, only for the Swiss court to correctly dismiss it.

Judiciary’s role in such commercial cases as the privatization of Steel Mills etc, and what may be deemed as tortuous interference in international contracts having binding arbitration clauses such as the Reko Diq-TCC and Turkish Powerboat rental cases might result in huge economic losses for our cash deprived nation.

In the process the rule of law and the bedrock principle of separation of powers of the three branches of the government, embedded in our constitution, has been dealt a severe blow. Many of the country’s key institutions like the police, FIA, FC, NAB and other law-enforcement agencies and institutions and bodies like OGRA have been undermined.

Terrorists have been let loose in reign of murder and mayhem in the land, and the country’s security situation has worsened as a result of judiciary’s interference in governance. To stifle the voice of the people, to silence any criticism in the media and to preempt any public debate or discussion over the excesses committed by it, the judiciary can use the contempt of courts powers under Article 204 (2)(b) of the constitution of Pakistan to silence all and sundry who dare question it. In no other democratic country anywhere in the world, a court of law can use its contempt powers outside the courts premises in order to abridge that most fundamental of human rights, the right to free speech and expression.

And as all of us have by now come to shockingly realize that through the ad nauseum invoking of the controversial ‘suo motto’ Article 184(c)(3) of the constitution, our apex court has been ruling on any matter under the sun at its pleasure, from the price of samosas to the price of CNG and electricity etc to the transfer of civil servants, to remove an elected head of the government etc. – all under the pretext of ‘enforcement of fundamental rights’ or as a ‘matter of public importance’.

Therefore, as a first step, the parliament should scrap this root-of-the-problem Article 184 (c)(3) of the constitution, the source of all judicial intervention, and discard the equally outrageous Article 204(2)(b). Our people should know that neither the ‘suo motto’ nor the ‘contempt of court’ provisions in their present shape or form exist anywhere in the world.

Such sweeping, anti-democratic articles were surreptitiously and spuriously inserted in the constitution to be subsequently used as authoritarian tools or ploys by the courts for the sole purpose of suppressing the elected representatives and will of the people.

In addition, the elected parliament must modify other relevant provisions in the constitution and laws and insert appropriate new provisions that would deprive a politically ambitious and authoritarian judiciary of the legal tools to play an imperious or usurping role of a super executive and super parliament, completely unchecked by any one and accountable to no one.

New provisions in the constitution and laws must clearly stipulate that the sole function of the apex court is to apply and interpret the constitutions and laws only in actual, adversarial cases that come before it on appeal from lower courts. The constitution should expressly state that the judiciary shall have no business interfering in or encroaching upon or advising the executive and legislature on matters relating to governance, execution or implementation of laws or legislation of laws.

Perhaps, not content with its relentless daily intrusions and indeed marauding of the previously weak, submissive and inept government and its eventual derailment, it seems that this judiciary is now eyeing the new PMLN government as its prey.

If Prime Minister Nawaz Sharif and his PML-N are not careful and fail to nip this judicial hazard in the bud, the danger is that he and his party will meet the same fate as did the last government of PPP and Yousuf Raza Gilani. This judiciary with its fire stoked by a pliant and self-serving media and vested, parsimonious interests do not seem prone to stop lording over the elected government and the people’s parliament on its own volition.

The writer is a Juris Doctor, and an Attorney at Law, based in Houston, Texas, USA.