The constitution of Pakistan envisages the legislature, judiciary, and executive as three organs of the state, which are necessary for running the country. Separate jurisdictions, which carry distinct responsibilities, have been crafted for these organs to operate. Still some grey areas in the constitution (mostly manufactured) lead to the continuous intervention of one organ into matters and jurisdiction of the other.
Pakistan has a long history of judicial activism. Justice Iftikhar Chaudhary’s tenure was the epitome of judicial activism. Although nothing matched his ‘flawless’ use of judicial power, there was no stopping the honourable judges even after his retirement. Disqualifying elected prime ministers and cabinet members, deciding the tax amount on mobile cards and intervening in executive postings, the Supreme Court has spread its wings like an angel, sprinkling fairy dust to cleanse the political mess.
Recently I had the opportunity to hear a former chief justice of Pakistan (CJP), who belongs to a well-known Baloch tribe, address the student body of a university in Lahore. He criticised the politicians for their corrupt practices and policies and the people for electing them. He also criticised the political parties for being dynastic and its members incapable of running the country.
In our country, the judiciary is a sacred cow while politicians draw flak for all ills surrounding us. It seems the right to criticise the judiciary is reserved for a select few. Talal Chaudhry and Daniyal Aziz were sentenced for contempt of court for their rant against the superior court after Nawaz Sharif’s disqualification in the Panama Paper’s case. But no such action was taken against Imran Khan after he openly violated the court’s order in his Azadi March, or against other PTI leaders or the PTI social media wing that actively runs propaganda and hashtag trends against the court on the social media.
In our country, the judiciary is a sacred cow while politicians draw flak for all ills surrounding us. It seems the right to criticise the judiciary is reserved for a select few.
A pertinent question to ask at this point is: Can we hold the un-elected judiciary accountable? Certainly not. From the appointment of judges to their removal, the elected representatives have no power. The Judicial Committee only has two government representatives and none from the opposition; and the parliamentary committee for the appointment of judges acts as a rubber stamp, for it must provide ‘reasons’ in case it disapproves the nomination of a candidate. However, in the US, the president nominates the superior judiciary and in the UK, Lord Chancellor, who is accountable to the parliament, plays an active role in the appointment of the judiciary.
The Supreme Court of Pakistan follows the idea of ‘being held accountable by his or her own peers’. A judge of the Supreme Court can be removed under article 209 of the constitution through a direction given by the president to the Supreme Judicial Council — which is a judicial body.
On the contrary, the Indian parliament has the authority to form an inquiry committee, responsible for investigating charges against a particular judge, and if the committee finds him guilty, a special majority in both the houses can remove him from office. In the US, a simple majority in the House of Representatives and a two-third-conviction vote in the Senate can lead to the removal of a judge.
We must make sure that while enjoying independence, the judiciary must not unnecessarily hamper the workings of the legislature and executive. Judicial independence can only be achieved if the judiciary allows other organs to work independently. It must not forget that the Supreme Court is not a kingdom and the chief justice not a king.