The Supreme Court and other components of the superior judiciary play a foundational role in saving society and state from chaos and anarchy. They are the enforcers of law, fundamental rights and the sole interpreters of the Constitution. In the absence of an institution like the superior judiciary in our system, there is a heavy chance that the executive authority of the state—that in layman’s language would include the government, police, investigative agencies, bureaucratic structures, the military and other coercive structures of the state — would be oppressive tools in the hands of rulers who could run amok. In other words, the institution of judiciary is an effective check on the unfettered powers of the state machinery.
The judiciary is also supposed to be the enforcer of fundamental rights like freedom of expression, freedom of association, freedom of religion and several other rights as provided in our Constitution. Any basic understanding of political realities would make people comprehend that in any political community, the courts ensure that the masses—practical manifestations of which are political parties, trade unions, pressure groups, and other social and political organizations— don’t get trampled upon by the oppressive state machinery. So, the superior courts not only ensure fundamental rights of the ordinary citizens are protected, it also ensures that no institution of the state steps out of its jurisdiction. Hence, its role as a savior against chaos and anarchy in the society. This is why I describe the Supreme Court as a foundational institution.
The way superior courts in Pakistan were made to adjudicate almost every political question under the sun during the post-Musharraf period has made a mockery of the whole political system. It appears that not a single political institution is functioning in our society.
We have a very unfortunate political situation prevailing in our society. The Supreme Court is under attack. The ruling party, the PML-N, has launched a frontal attack on the Supreme Court, Chief Justice Umar Atta Bandial and a few other judges of the Supreme Court. PML-N Vice President, Maryam Nawaz Sharif has accused the Chief Justice of assuming the role of Chief Election Commissioner, Defense Minister, Finance Minister and government in general at the same time. She said this in response to a three members bench ruling in which the Court ordered the holding of Punjab provincial assembly elections in the second week of May. This much is normal in a society in which superior courts play the role of political arbiters on almost every political situation under the sun. The speakers’ ruling is deemed unlawful, the Supreme Court will decide; the assembly is dissolved unlawfully in the view of one political party, take the case to the Supreme Court.
The Supreme Court’s role as a check on executive authority is different from exercising executive authority itself. Using executive authority will expedite the death of the judges’ moral authority.
Some political leaders don’t like the Election Commission’s decision to fix election dates on a particular day, they would knock at the court’s door. The Prime Minister has refused to write a letter to some foreign authority, so the Supreme Court will decide the implications of this refusal for the political system. There is no end to this madness. The types of cases decided by our unfortunate polity’s superior courts in the past few years indicate that they have assumed the role of investigating agency, prosecutors, policy makers, policy planners and last but not the least, opposition leader to the sitting government.
Political questions are most of the time messy and their implications are even messier. Political controversies, if they are decided by court orders, always produce winners and losers. This means that if political controversies are decided by court orders, they are likely to give rise to deep seated grievances. Court orders are in black and white, whereas political controversies demand that they should be decided in an atmosphere of compromise – of give and take. There are polities around the world where political leaders deliberately avoid going to courts for settling political disputes. This is particularly applicable in American politics, where the Supreme Court rarely adjudicates on political questions.
If a purely legal question is not involved in a political dispute, then the courts should avoid adjudicating on the political questions. The way superior courts in Pakistan were made to adjudicate almost every political question under the sun during the post-Musharraf period has made a mockery of the whole political system. It appears that not a single political institution is functioning in our society. All this appeared completely laughable when someone from the opposition demanded that the Supreme Court should investigate the allegations against government personalities that they were out to assassinate Imran Khan. It means the Supreme Court is an investigative law enforcement agency as well.
There is a long and unfortunate history of the Pakistani judiciary willingly playing the role as a pawn of the powers that be.
During the last year, both the leading parties of Pakistan—the PML-N and PTI—have on their own turn, lambasted the role of the Supreme Court and superior court judges for different reasons. This is primarily because both the parties are politically impotent and are largely dependent on courts and other state institutions to make things happen at the political and administrative level. When the courts don’t deliver judgments which serve the political interests of these political parties, they launch frontal attacks against them. The Supreme Court’s and superior courts authority rests on a moral pedestal. The Court does not have the ability to deploy coercive or lethal force; there is no equivalent of III Brigade, the Army’s troops formation, part of which is located in Islamabad and which practically takes control of major installations in Federal Capital if the Army’s high command decides to impose martial law, in the control of the Supreme Court. It is purely moral and legal authority through which the Supreme Court exercises its powers.
It is absolutely imperative for the Supreme Court not to foment rebellion against its authorities in the society just by overstretching its moral authority. The Supreme Court could do three things: it could keep away from deciding purely political issues in which no purely legal question is involved, or it could stop weaponizing their jurisdiction: 184(3) is primarily meant to enforce fundamental rights and not to punish people. There is a clear line between enforcement of fundamental rights and using this jurisdiction to punish people. Rebellion will be lurking in the winds if the Court continues to weaponize its jurisdiction. Or the Court could stop usurping the executive authority of the state machinery. The Supreme Court’s role as a check on executive authority is different from exercising executive authority itself. Using executive authority will expedite the death of the judges’ moral authority.
Our judiciary has been busy enforcing the fundamental rights of the powerful and the mighty, whom the full force of the state cannot produce before a court, and those for whom the laws are bent to open the gates of the jail so that they can proceed abroad, even while serving a jail sentence delivered by a court of law.
Besides all that, there is a long and unfortunate history of the Pakistani judiciary willingly playing the role as a pawn of the powers that be. We have incidents in our history where this role was exposed before public eyes, which caused scandals. Add to this the apparent love that judges display for being politically relevant and achieving celebrity status as populists. The judge’s pretensions of being in possession of moral authority are displayed at the cost of somebody’s political legitimacy. Political leaders react when their political space is squeezed by politically active judges, who ostensibly are functioning as enforcers and interpreters of the Constitution and law. Whereas in actuality, they are intruding into the political space and usurping the executive authority of the government and the executive branch of the state. The problem starts when judges make an attempt to weaponize their jurisdiction. But this process is clearly culminating into a situation where political players are ready to push the judges back.
If somebody is interested in retaining the moral authority of the Supreme Court and superior judiciary, they must start working for developing a political consensus for introducing reforms in the functioning of the judiciary through fresh legislation. It might seem really hard, but Parliament must take steps to curtail the political role of the judiciary. The enforcement of fundamental rights is a jurisdiction which should be exercised for ensuring the rights of the downtrodden, weak and underprivileged. Our judiciary has been busy enforcing the fundamental rights of the powerful and the mighty, whom the full force of the state cannot produce before a court, and those for whom the laws are bent to open the gates of the jail so that they can proceed abroad, even while serving a jail sentence delivered by a court of law. They are powerful and they don’t need the judges’ intervention.
Who needs the Court’s intervention? The judges merely need to look out of their black luxury sedans to find out. They should not sacrifice their foundational role at the altar of their overly hyped desires to remain politically relevant.