- Institutions and their mandates
The very essence of democracy, the separation of powers, has always been an important yet controversial topic in Pakistan. Different state institutions have always encroached upon the domain of others. Be it over-reach of the military or judicial activism, encroachment of some sort has always been present.
Despite not having political mandate, the institutions always find politics embodied within them. Similarly, religion has always been exploited to gain political mileage. The TLP dharna at Faizabad was a classic example of employing religion to strengthen political ground. Though the foundation of the dharna was supposedly the change in the oath, yet the purpose which revealed itself was making room in the political arena. A federal minister was forced to resign his office as the state cowered before the extremist elements.
For weeks the capital of the country remain at the mercy of the extremist TLP with the state unable to secure any relief for the citizens. Hospitals, courts and other government offices remained at a halt due to the choking at the main artery between the twin cities. The Supreme Court was finally constrained to take cognizance of the matter. Suo motu proceedings were initiated and the apex court questioned the actions of all the involved parties.
The proceedings which continued for more than a year finally culminated into a final judgement which was announced by the apex court this past week. Authored by Justice Qazi Faeez Isa, the judgement highlights the encroachment of constitutional mandate by different state institutions.
The Supreme Court has pointed out the failure of the state to deal with protests which get out of hand. The right to assemble and protest is a fundamental right which has been duly recognised by the apex court however, fundamental rights are subject to reasonable restrictions imposed by law. A person’s right to exercise his fundamental right cannot be at the cost of infringing another person’s rights.
The moment a protest gets violent or disrupts the day to day life of ordinary citizens, it becomes the obligation of the state to act accordingly. Meanwhile, other state institutions having the mandate to gather covert information should be utilised to resolve such issues. The Hon’ble Judge further addresses the way in which TLP gained traction. Various media outlets publicised the dharna on primetime and the violent protesters got the free publicity. During such time the concerned regulatory authority failed to monitor and regulate what went on air.
At the same time, the alleged manoeuvring of the media by certain quarters has been frowned upon by the apex court. Covert and overt censorship of any sort has been declared unconstitutional. The Hon’ble judge goes on to state “Those who resort to such tactics under the mistaken belief that they serve some higher goal delude themselves.”
The judge with a stroke of his gallant pen struck at the unspeakable interference by state institutions. The strong worded verdict reinforces that this country belongs to the people and nobody is above the law.
It is unfortunate that due to the persistent failure of the state in handling such matters, the judiciary had to intervene and remind all functionaries of their respective constitutional mandates and responsibilities. The highest court of the land had to once again simplify the mode and manner in which the organs of the state should operate.
Above all, the Supreme Court noted the politicking being undertaken by the intelligence agencies and directed that action be taken against all those found violating their oath. Indeed, any violation of the constitutional oaths should be strictly reprimanded. However, the political landscape of our country creates a situation which invites interference from other institutions. The vacuum which is always left tempts either one of the institutions. The very supreme court rendering this verdict bade farewell to a captain who readily believed in judicial activism and encroaching upon the constitutional mandate of others. He further defended his actions on the pretext of the persistent failures of others to fulfil their responsibilities.
Although, pointing out institutional intervention is a commendable step however, before any such pursuit, it is imperative that the institution cleans its own dirty linen. The opinion of the Hon’ble judges is welcoming in its academic essence but the same consists of inherent flaws that are evident at the very outset. The Supreme Court has summed up all the predicaments being faced and has fixed responsibility for the various blunders committed in the past and accordingly has also issued directions to rectify the same in the future. Yet, the most important aspect of the verdict which is its implementation has been left out.
Despite pointing out failure to implement the judgement in the Asghar Khan case, the Supreme Court has been unable to lay down a clear cut way forward as to how to implement its dictates and what deterring factors would be present if the same is violated and not implemented. Nevertheless, it is a step towards institutional independence and strengthening the bonds of democracy though, all of this would amount to nothing if strict implementation is not pursued. Maybe an implementation bench under the circumstances would have been the right step. If the apex court can pre-occupy their judges to ensure implementation of verdicts such as the panama papers case where the matter essentially revolved around one man and his family, then for such public importance issues, an implementation bench would have been more than welcome.
Seeking reports in regards to who, when and how did an institution over-step its mandate and then directing appropriate action would have been the actual victory. Otherwise this judgement is only going to remain in the law journals for law students to read and nothing more.
Conclusively, it is important to note that such outright allegations against one another are going to cause irreparable damage to Pakistan as a nation on the international front. It is essential that all state institutions including the judiciary as well as the military huddle together and work out a lasting solution to the existing predicaments, as Chief Justice Khosa pointed out in his inaugural address.
