A caution and a critique
Outgoing Senate Chairman Raza Rabbani has expressed concern over the growing judicial meddling in legislative processes and the issuance of a contempt notice to the Khyber Pakhtunkhwa (KP) Assembly Speaker by the Peshawar High Court. Speaking to the upper house, Rabbani said he did not want to increase further the intra-institutional rancour. He referred to his recent meeting with the Chief Justice of Pakistan (CJP) Saqib Nisar in which he had drawn the attention of the CJP to a judgement written by Justice Nisar himself in which the Supreme Court had exercised restraint in going beyond the veil of internal proceedings of parliament in the light of Article 69 of the Constitution. Such restraint, Rabbani argued, needed to be exhibited by the high courts, lower courts and judicial and quasi-judicial tribunals as the judiciary and parliament were not at cross-purposes, the aim of both being to preserve, protect and defend the Constitution. Apart from the contempt notice to the Speaker KP Assembly, Rabbani made reference to the Islamabad High Court’s seeking information that infringes upon the protection afforded to the internal proceedings of parliament. Dilating on the office of Chairman Senate, which Rabbani pointed out was an office in perpetuity, he ventured that that office would like an amicable settlement of these jurisdictional issues in the spirit of mutual institutional respect and the trichotomy of powers in the Constitution. Whereas Chairman Rabbani delivered his message softly and as a word of caution, retiring Senator Farhatullah Babar once again in his bold style took the bull by the horns. Senator Babar warned against the judicialisation of politics and the politicisation of the judiciary, the worrying existence of a state within the state and the utter helplessness of parliament to arrest what he saw as a downslide. He said he could not applaud the CJP swearing that he had no political agenda or the judges quoting poetry instead of the Constitution and law. Nor, Senator Babar went on, could he go beyond accepting the CJP’s telling us that the Constitution is supreme to also accept the CJP’s telling us that the Constitution is what he says it is rather than what is written there. When the dignity of the courts had to be upheld by brandishing the contempt law rather than by force of argument, he argued, it was time for us to ponder. He said it would be a disaster if the election year turns into the year of a referendum against the judiciary. Senator Babar then turned to a critique of the existence of two states, one de facto, the other de jure, often working at cross-purposes. The de facto state calls the shots but refuses to submit to accountability. He lamented the failure of parliament to bring in legislation for the accountability of all, including judges and generals. He was distressed that all the political parties, including his own PPP, backtracked on this demand for accountability across the board, leaving no room for sacred cows. Babar argued that we must resolve this contradiction of a state within the state if Pakistan is not to be devoured by it. He also warned against attempts to roll back the 18th Amendment and provincial autonomy lest it open up a Pandora’s box of risks to the existing federal structure of the state. Last but not least, Senator Babar vowed to continue his struggle for this cause even outside parliament. Ironically, Babar’s critique of his own party was vindicated in the shape of former prime minister Raja Pervez Ashraf, who distanced the PPP from Babar’s so-called “personal views”.
Chairman Rabbani’s gentle admonition goes to the heart of the trend set in motion by former CJP Iftikhar Chaudhry’s restored court. By now, few are comfortable with the momentum and direction judicial activism is assuming. It goes without saying that unless the judiciary goes back to the time honoured practice of judicial restraint, intra-jurisdictional and intra-institutional conflict could erode our still precarious democracy. Senator Babar’s strictures about the deep state ironically owe something to the door being opened by Zulfikar Ali Bhutto in creating a political cell within the ISI in the early 1970s. Of course, the Afghan wars and other developments over the years accelerated these humble beginnings into the unaccountable behemoth the deep state has now become. The military establishment and the intelligence community have their own heavy responsibilities to attend to. Arguably, experience shows that their involvement in politics or other spheres, especially if hidden from public view, has neither helped the polity nor these institutions. If Chairman Rabbani’s caution and Senator Babar’s critique are kept in view, taken as a whole they offer a wise course for all state institutions and political forces to pursue.