The Parliament, the Executive and the Judiciary

As always, a debate is going on these days as to how to maintain a balanced working relationship between the three branches of government i.e., the Parliament, the Executive and the Judiciary. Allegations and counter allegations are being made that one branch of government is exceeding its limits through unnecessary interference into jurisdiction of the other two. To illustrate the above, I think examples are not required, as it would consume considerable space. However, certain guidelines are mentioned below which are based on relevant provisions of our constitution and the laws as well as recent examples of alleged interference.

Relations between Parliament and the Judiciary should be governed by respect for Parliament’s primary responsibility for law making on one hand and for the Judiciary’s responsibility for the interpretation and application of the law on the other hand. Parliament and Judiciary must fulfill their respective but critical roles in the promotion of the rule of law in a complementary and constructive manner, instead of desiring to achieve cheap popularity. Parliament must be able to carry out its legislative and constitutional functions in accordance with the Constitution, free from unlawful interference from other organs of the government. In order to enhance the effectiveness of law-making, there should be adequate parliamentary examination of proposed legislation where appropriate opportunity should be given for public input into legislative process. Parliament should, where relevant, be given the opportunity to consider international instruments or regional conventions etc. The governments and Parliament should organise public seminars to get input from experts on the subject matter of the proposed legislation. Parliamentary Committees must be involved prior to putting the matter before the House.

An independent, unbiased, honest in all forms and competent Judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice. The function of the judiciary is to interpret and apply Constitution and legislation and if possible, consistent with international human rights conventions and international laws, to the extent permitted by the domestic law of the country. To secure the above aims:

a) Judicial appointments should be made on the basis of clearly defined criteria in the Constitution and by a publicly declared process. The process should ensure equality of opportunity for all who are eligible; appointment on merit; and that appropriate consideration is given to the need for the progressive attainment of gender equality and the removal of other historic factors of discrimination;

b) The security of tenure which already exists in the Constitution be ensured. Judges should be subject to removal only for reasons mentioned in the Constitution and law and there should not be any other procedure of removal except as prescribed in the Constitution and law. Removal of Judges through backdoor process or innovative means must be stopped and a penal action may be contemplated under the Constitution and law for those who deviate and violate the Constitution in this matter. It is also pertinent to emphasize that an independent, unbiased, effective and competent bar is fundamental to upholding of the rule of law and independence of Judiciary.

c) Interaction, if any, between the Executive and the Judiciary should not compromise judicial independence.

The promotion of zero-tolerance for corruption is vital to good governance. A transparent and accountable government together with freedom of expression encourages full participation of its citizens in the democratic process. Merit and proven integrity should be the criteria of eligibility for appointment to public office: subject to measures may be taken, where possible and appropriate, to ensure that the holders of all public offices generally reflect the composition of the community in terms of gender, ethnicity, social and religious groups and regional balance. The Executive should maintain high standards of accountability, transparency and responsibility in the conduct of public business. Parliament should provide adequate mechanism to enforce the accountability of the Executive to Parliament. The best democratic system in the world requires that the actions/decisions taken comply with the Constitution, with relevant statutes and other laws, including the law relating to the principles of natural justice. The latter is also incumbent upon the Judiciary to follow. Steps should also be taken to hold public sector accountable, which may include:

a) The establishment of scrutiny bodies and mechanisms to oversee the acts of the government and its projects. Such steps shall enhance public confidence in the integrity and accountability of the government’s activities. The offices of Public Accounts Committee, Ombudsman, Human Rights Commission, Auditor General, Anti-Corruption Department and other similar bodies can be made more stronger and active to keep an eye on the government functionaries to ensure that they perform their functions strictly in accordance with the provisions of the Constitution and laws;

b) Government’s transparency and accountability is promoted by an independent and vibrant media which is responsible, objective and impartial. The Executive should recognise the role that civil society can play in of fundamental rights. The civil society can also provide necessary guidance into several matters which relate to day-to-day business of the government.

Finally, the three organs of the state must have a sound relationship based on mutual respect. This relationship can be based on a sound footing only if there is willing and not grudging recognition of the limits of their activities. The last premise is nothing but the familiar concept of the separation of powers which the French writer, Montesquieu wrote of as far back as in 1748 in L ‘Esprit des Lois.

The writer is a former judge, Lahore High Court.