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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