Tuesday, February 20, 2018

Business Recorder Editorial Feb 20, 2018

Clash of state institutions

In a belated move, Prime Minister (PM) Shahid Khaqan Abbasi has taken the PML-N’s conflict with the judiciary to parliament. Addressing the National Assembly after presiding over a meeting of the PML-N parliamentary group, the PM called for a conclusive debate in parliament to determine who has the final say in legislation. Criticising the current trend of judicial activism, the PM said it was badly affecting the functioning of his government. Amongst the charges laid at the door of the judiciary, MNAs from both sides of the aisle supported the proposal, albeit the opposition expressed some reservations. In particular what came under fire was the increasing tendency of the judiciary to take suo motu notice of all manner of things, some of which have arguably led the judiciary to encroach on matters that normally are the purview of the executive. This free use of suo motu powers, particularly by the Supreme Court of late, runs against the grain of our past jurisprudence, in which suo motu powers were only used in exceptional circumstances where fundamental rights under Article 184(3) were affected. This is leading to the judicialisation of politics, and runs the risk of politicising the judiciary. Judicial restraint seems to have been abandoned since the tenure of restored former Chief Justice Iftikhar Chaudhry, with his successors seemingly unable to resist the temptation to intervene in matters where it is felt the executive is not delivering and even, as PM Abbasi put it, insulting and turfing out government appointed officials. Delving into such spheres erodes the division of powers enshrined in the Constitution, which is the foundation of a democratic system. Unfashionable as it may sound, the scheme of democracy leaves the accountability of non-performing or unsatisfactorily performing elected governments in the hands of the electorate through the ballot box. PM Abbasi also lamented the use of derogatory remarks by some judges against elected representatives. The old wisdom was that judges speak through their judgements. Not only has that time-honoured principle been forgotten, even some judgements have resorted to the use of derogatory terms for elected representatives. Armed with what appears to be the mandate of the PML-N parliamentary group’s meeting, the PM spoke in an idiom closer to ousted PM Nawaz Sharif than ever before. He criticised the threats from some judges that they would strike down legislation passed by parliament (of course on the touchstone of the Constitution). In principle parliament is supreme in a democracy, possessing not only the power to legislate within the four corners of the Constitution, but even amending the Constitution itself. PM Abbasi asked the rhetorical question in the house whether parliament would henceforth have to seek prior approval for legislation to be passed by it. He also mooted the proposal to discuss judges’ behaviour in parliament, a suggestion met by hostility from one section of lawyers, who pointed to Article 68 that expressly blocks any such discussion. This may however turn out to be nothing but a storm in a teacup or simply posturing since such a move requires a constitutional amendment, which the PML-N is not in a position to bring about since it does not enjoy a two-thirds majority and is unlikely, on the eve of the general elections, to persuade the opposition to support it.

We are once again in a sorry state witnessing the growing clash between two of the institutions of state, the executive and judiciary. Such conflicts have never been good for the country or democracy. Where the judiciary would be well advised to shun overreach and exercise traditional judicial restraint, the government too should not escalate the war of words to levels from which retreat proves difficult and leads to unforeseen consequences.

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