Justifying unconstitutional decisions

Has judiciary overstepped its powers?

For quite some time the media has been reporting that in response to the protestations of the legislators forming parliamentary committee on appointment of judges, the government is mulling over the proposition of reviving the powers of the committee as it enjoyed under the 18^th amendment which were taken away under the 19^th amendment, making it almost obligatory on it to endorse the recommendations of the judicial commission. The position taken by the detractors of this move is that it would amount to curbing the independence of the judiciary. Another view being propagated is that even if the ruling PML-N in connivance with the PPP is able to bring a constitutional amendment to oblige the legislators, the SC would still have a final say on its constitutionality.

Since the questions raised are of considerable national importance, they merit an objective appraisal with a view to unravel the circumstances leading to the 19^th amendment and the constitutionality of the SC objections to the clause of the 18^th amendment on appointment of the judges. I think the constitution itself adequately answers these questions. Article 239(5-6) says: “No amendment of the constitution shall be called in question in any court on any ground whatsoever. For the removal of doubt, it is declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provision of the constitution.” As is crystal clear, the judiciary cannot challenge any amendment in the constitution made by the parliament on any ground. The very fact that the SC challenged the clause of the 18^th amendment regarding appointment of the judges and forced the government to bring in the 19^th amendment itself constituted breach of the constitution. It actually tried to overlord the executive and the legislature. The appointment of the judges is an administrative matter and falls within the jurisdiction of the executive. Nowhere in the world the judiciary appoints its own judges. They are either appointed by the executive or the parliament as is the case in US and Australia. Another point to be noted is that the judiciary sat in a judgment of their own case in breach of the internationally recognised principles of jurisprudence.

But unfortunately such was the intensity of the euphoria for the independence of judiciary that the media, the political parties in the opposition and lawyers supporting the then CJ hailed it as a move towards independence of the judiciary, not realising the fact that the judiciary in its enthusiasm for independence had gone beyond its constitutional powers. As per the constitution there is no limitation on the powers of the parliament to make any amendment in the constitution. This ouster clause actually debars the judiciary to meddle into the affairs of the parliament.

The question of parliamentary ascendancy over other institutions of the state has also been settled by the constitution itself. While acknowledging the sovereignty of God over the entire universe, the constitution recognises the people of Pakistan as sovereign within the state of Pakistan in conformity with the limits prescribed by Him and their right to exercise this sovereignty through their chosen representatives, which is the parliament. In that respect parliament is the mother of all the state institution that it has created through promulgation of the constitution, which can be amended by none other than the parliament itself. Logic and gumption therefore dictate that all the institutions of the state, including the judiciary need parliamentary oversight to ensure that the will of the people is implemented, the way it has been desired to be realised and no institution commits the indiscretion of transgressing its constitutional limits.

The judiciary under former CJ was not an independent judiciary in the true sense. The lawyers’ movement that promised the emergence of a new dawn heralding independence of judiciary only proved to be a transition from one disaster to another. The dream for an independent judiciary went awry. The testimony to this fact came from a former and the most respected judge of the Supreme Court, Justice (retd) Sardar Muhammad Raza who in an article published in the national dailies frankly admitted that the present judiciary was not independent and the conduct of the judges giving disparaging remarks during the hearing of the cases was also contrary to their code of conduct. He impliedly expressed concerns about corrupt judges, talking judges, judges with bias, petulance and prejudice and judges indulging in naked usurpation of the legislative function under the disguise of interpretation.

The courts are not supposed to make laws or interpret them in breach of the recognised norms of interpretation or give them meaning to assuage the popular sentiments or act in violation of the constitution. Unfortunately, some of the decisions given by the SC smacked of all these abominations. It had cast itself in the role of legislators, encroached upon the powers of the parliament in certain cases and shown an irresistible propensity to meddle into the affairs falling within the constitutional jurisdiction of the executive. Fixing the prices of commodities, interfering in the postings and transfers of the bureaucracy, restricting development expenditures and other budgetary allocations approved by the parliament and taking suo motu notice of everything under the sky in fact paralysed the functioning of the executive.

Justifying the intervention of judiciary on the ground that the executive had failed to solve the problems of the people and they looked upon the judiciary to redress their grievances, was tantamount to reincarnation of the doctrine of necessity. An Islamabad-based constitutional lawyer Babar Sattar in his article referring to the indiscretions of the SC said, “There can be a legitimate debate on the need or scope of a ‘political question doctrine’ as part of our constitutional law that strikes the right balance between judicial activism and restraint. But to argue that that the judiciary intrudes into the province of the executive out of necessity when people look up to the ‘peoples’ court in utter helplessness, is just that another doctrine of necessity.”

As is evident, the forcing of the 19^th amendment on the parliament by the SC was wrong and unconstitutional. And if it has been realised to rectify that wrong and establish the ascendancy of the constitution, it should be appreciated and supported by all those who really believe in the independence of judiciary and the ascendancy of the constitution. The judiciary cannot and should not challenge any amendment in the constitution. Justifying unconstitutional court decisions does not serve the cause of the justice or independence of judiciary.