All institutions of the state are subservient to it, and that includes judiciary too
Our constitution, acknowledging the sovereignty of God over the entire Universe, 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 institutions 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 as enshrined in the constitution is implemented the way it has been desired to be realised and no institution commits the indiscretion of transgressing its constitutional limits. Article 66(1) and 69(1) therefore rightly debar the courts from questioning the deliberations of the Parliament or anything said by any member of the Parliament on the floor of the House. These ouster clauses unambiguously provide protection to the Members of the Parliament from being answerable to any court for their speeches and statements made in the House.
But regrettably the Supreme Court in complete disregard to these constitutional provisions has entertained a petition for the disqualification of the Prime Minister on the basis of a statement that he made in the Parliament regarding mediatory role by the COAS in the current political crisis. I am not a legal expert but do have the common sense to understand the meaning and intent of these clauses of the constitution. The SC should have straight away refused to entertain the petition which was regarding a matter outside the jurisdiction of the court, because being a protector of the constitution and fundamental rights of the citizens, it was bound to respect the constitution itself to set an example for other state institutions to emulate. Dispensation of justice is done within the ambit of the law and the constitution and not be violating it.
Judiciary is the most sanctimonious institution of the state. Justice is the pillar on which the edifice of the state and society is erected. Islam gives top priority to justice in a society but that justice has to be within the confines of Shariah and law of the land. Unfortunately the judiciary in Pakistan does not have an enviable record in regards to dispensing justice and protecting the constitution. It has validated the military coups and supported the unconstitutional acts of dictators who trampled the fundamental rights of the people through martial law regulations and other coercive administrative measures. The judges mostly remained subservient to the interests of the sitting governments, inflicting incalculable harm on the state institutions and democracy.
The hopes kindled by the Lawyers Movement to have an independent judiciary — within the confines of the constitutional parameters and internationally recognised principles of jurisprudence — unfortunately have failed to materialise. It is an internationally recognised principle of jurisprudence that the duty of the judges is not to declare what the law should be, but what it is. In other words, the judges are not legislators or lawmakers but adjudicators interpreting the text of the law laid out by the legislatures and stating what it means. It implies that the judiciary has limited powers. Another internationally recognised principle of jurisprudence is the exercise of restraint.
An incisive look into the decisions given by the SC headed by Iftikhar Chaudhry reveals that in most of the cases all the internationally recognised principles of jurisprudence and relevant provisions of the constitution were violated. The judiciary acted more like a popular court than the court of law. The SC challenged the 18th amendment clause regarding the appointment of judges and almost forced the Parliament to bring another amendment to accommodate its viewpoint, thus violating Article 239(5-6) of the Constitution which 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 hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the constitution.”
It also tried to overlord the Parliament through its unremitting propensity to use its suo motu jurisdiction and tried to intervene in anything under the skies and even the areas which were the exclusive domain of the executive. The CJ and SC judges instead of speaking through their decisions relished the spectacle of hitting the headlines through their remarks and statements during the hearing of the cases, violating the code of conduct prescribed by the Supreme Judicial Council.
Unfortunately that trend still continues. One of the learned judges remarked during the hearing of the case that the people had the right to know what transpired during the meeting between the Prime Minister and the COAS and the Prime Minister, COAS, Imran Khan and all others would have to appear in the SC. With due veneration to the observation of the learned judge, it would perhaps be pertinent to mention that the COAS and the Prime Minister meet frequently to discuss matters related to the ongoing war against the terrorists and security related issues and the deliberations of their meetings cannot be made public for security reasons as well as in the public interest.
The people have the right to know but that right is not absolute in certain cases. The court needs to observe restraint, abandon its proclivities to interfere in the domain of other state institutions and dispense justice within the parameters of the existing laws and the relevant constitutional provisions. Any conduct to the contrary is bound to bring about a clash among the state institutions which the country cannot afford at this critical juncture of the history and for that matter not even under the normal circumstances. The country needs judges dispensing justice strictly according to the law and the constitution and not the saviours. The nation has already suffered enough at the hands of the self-styled saviours.
The only institution which can check this trend is the Parliament. To ensure that the judiciary functions independently within the constitutional limits, suo motu powers of the SC should be clearly defined and an unambiguous contempt law should be promulgated which discourages the court from using its discretion unnecessarily. Perhaps it was also the right time to replace the present Supreme Judicial Council with a permanent constitutional commission comprising retired Supreme Court judges, eminent constitutional lawyers and parliamentarians to judge the constitutionality of the decisions given by the SC and to review them, besides taking action in regards to the conduct of the judges on reference from the government.
These steps are in the supreme national interest and all the political parties represented in the Parliament need to show the same solidarity that was witnessed during deliberations and approval of the 18th amendment, rising above party politics.