Is judicial restraint going to prevail?

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Balance required

It was the French political wizard Montesquieu who clearly spelt out the principle of division of power between three organs of state. In Pakistan’s turbulent history of state institutions this defining principle lost its way giving rise to a battle of supremacy within the state institutions that appears never-ending. The internecine struggle between organs of the state gave the chance to arbitrary forces to de-rail the country from the path of democracy.

The national development is supposed to be spearheaded by a government that is elected by the people and they expect that the state will be governed according to the promises and commitments made by politicians. It is also both the constitutional right and the responsibility of elected representatives to run the government. The national consensus is kept in view while exercise of power by the government and it is subjected to the verdict of people after the end of its elected term in office.

In Pakistan arbitrary interventions unbalanced the regular process of elected governance. These interventions were validated by the judicial authority of the country doing enormous harm to the national interest. When the democratic process was put back on rails mainly through the efforts of democratic elements, the judicial overreach in the form of activism or judicial populism diminished the constitutional and legal space of the executive to function smoothly and effectively.

The judicial overreach robbed the executive of the opportunity and, by implication, the mandate to implement its agenda approved by the electorate. Judicial intervention never allowed democracy to deliver and also depressed the administrative machinery of Pakistan. The civilian governance institutions remain underdeveloped due to the negative impact of judicial activism since after the resumption of democratic process more than a decade before. Seen in the backdrop that judicial intervention never questions the dominance of the arbitrary forces in national polity, the deliberate targeting of civil institutions conveys the impression of a conscious negative interpretation of the balance of power in the country.

The apex court

The intensity of judicial activism was witnessed during the times of CJ Iftikhar Chaudhry and it was expected that it was the result of typical circumstances of his restitution that were mainly responsible for it but its resurgence during CJ Saqib Nisar indicated that this is treated as a weapon by superior judiciary that feels no compunction in using it. It has also indicated that judicial restraint is seen by the judiciary as a favour done to the governance process and it is held in abeyance till the need arises to re-use it.

The current attitude exhibited by superior judiciary appears to be a deliberate shift of the current chief justice who has also upturned an important verdict of his predecessor in respect of a hospital in Lahore. The problem is that the tenure of the current CJ is very short and the impression conveyed by cutting remarks of his successor indicates that judicial restraint varies from person to person and that the weapon is there to be used as and when required. It implies that Justice Khosa may have the prudence to be restrained but the long-term attitude of the apex court towards Article 184(3) will not necessarily be altered and that the current phase may prove out to be transitory in nature.

The prevalent strain of thought of personnel manning the superior judiciary indicates that they are still conducive to the significance and capability of judicial activism in the affairs of governance. While hearing a challenge to the 21st Constitutional Amendment in respect of setting up of military courts, 8 out of the 17 judges hearing the case ruled that the Supreme Court, indeed, has the power to review constitutional amendments on the basis of what they called a basic structure or basic features of the constitution. They consolidated their opinion by mentioning that it was the apex court’s jurisdiction to decide what was included in that basic structure and what was not.

This interpretation clearly meant that the Supreme Court could review, and annul, any future constitutional amendment that it deemed contrary to the putative basic structure. Seen in its essential spirit this train of thought categorically points out to the perception of superior judiciary that constitutional matters merit judicial review thereby providing it the power to veto the cumulative will of the parliament. It also shows that the superior judiciary explicitly intends to retain the right to extend application of Article 184(3) as much as possible within legal remit.

The loopholes inherent in judicial activism become manifest in the weakening of democratic process because when the courts frame policies the relevance of governance becomes weak, giving rise to structural maladjustment within the organs of the state. In the wider scheme of things, therefore, a judicial review may be legitimate only if it is guided by the constitutional scheme of separation of powers which regulates the relationship between different pillars of the state. If exercised injudiciously, a judicial review will only become the wielding of self-assumed powers by a hyperactive chief justice or some of his fellow judges.

Lawyer’s movement

The most problematic aspect of this issue is that the judicial review may at times be exercised at the expense of the views of other judges, often in violation of the Supreme Court’s internal rules and almost always in contravention of the constitution itself. Such an action certainly lacks notions of legitimacy and ultimately impinges upon judicial independence. This issue is rarely talked about but it is one of the most potentially hazardous aspects of judicial overreach that ultimately threatens the judiciary’s own independence. This point came to fore through the note of dissent recorded by Justice Mansoor Ali Shah related to the exclusion of Justice Qazi Faez Isa from a bench reconstituted by former CJ Saqib Nisar on the exercise of judicial powers as provided by Article 184(3) and regulated by the Supreme Court’s rules framed under Article 191 of the Constitution.

Justice Khosa has been very mindful of such a situation arising out as he is on record stating that “jurisdiction conferred by law can in no circumstances be exceeded by a judge in the name of justice because such an approach completely negates the concept of rule of law”. He also stated that the judiciary will be completely independent only when it becomes free from internal threats. He declared that such freedom will be the final frontier of judicial independence in Pakistan.

He further elaborated his argument by stating “Apart from that concentration of powers in the hands of the head of a judicial institution regarding constitution of benches, allocation and distribution of cases amongst benches, attaching of priority to different kinds of cases and geographic transfer of judges is an issue which has raised eyebrows in the past and can also resurface in the future. A possible misuse of such powers by the head of a judicial institution can effectively render the independence of an individual judge to be of no practical utility or benefit to the citizens at large.”

Pitfalls

The public dissent of two highly rated members of the superior judiciary underscores that a detailed discussion on defining and setting the parameters for the exercise of judicial power under Article 184(3) is required to be undertaken. While undertaking the discussion it must be taken into view that the jurisdiction of the apex courts to enforce fundamental rights does not exist and that it certainly does not operate in a vacuum because it carries certain preconditions within it. The text of the article requires the courts to only take up issues of public importance and it must involve a violation of fundamental rights which are provided in the constitution.

It will be in the fitness of things to state that the text of the article contains absolutely no mention of the power of the Supreme Court, or that of the Chief Justice, to hear and decide cases on suo moto basis. The situation is strengthened by Article 175 of the Constitution providing for creation of Supreme Court as well as the High Courts, expressly stating that no court shall have any jurisdiction except the one that is or could be conferred upon it by the constitution or under any law. It is interesting to note that the constitution confers suo moto power only on the Federal Shariat Court in Article 203D (1).

It may be pertinent to mention that the textual preconditions become increasingly relevant while looking into suo moto notices taken recently as, barring a handful of them, most were neither of public importance nor involved the infringement of fundamental rights. The suo moto taken on the Markhor logo on PIA planes did not qualify to contain any public importance or violating anyone’s fundamental rights thus did not deserve the attention of the apex court. The unstructured, arbitrary and difficult to justify overreach of judicial power is a viable threat to civilian governance structure. It may appear to gain public attention and support but it is transient in nature and that there is an inherent and intricate connection between the judiciary’s independence and how it interprets the constitution and exercises its power to review government actions. Judicial restraint may therefore be the goal to be pursued by the higher judiciary of the country. TW

M Ali Siddiqi is a writer who contributes to leading periodicals

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