Who is usurping whose role?
It hardly needs to be emphasized that in the countries that have written constitutions--- delineating powers between the state pillars i.e., executive, parliament and judiciary--- peace, tranquility and progress are inextricably linked to the functioning of these organs in conformity with their stipulated role as enunciated in the constitution and all other entities created by the state to owe allegiance to the governments formed in accordance with the scripture of the state. Looking through the prism of this touchstone, it is not difficult to find an answer to the frequently asked and debated question: Why, as a nation, are we still standing at the crossroads searching for our destiny even after 65 years of independence? The answer is quite simple. We have been the victim of a relentless syndrome of usurping of roles, unabashedly and unscrupulously resorted to by the state institutions in violation of the constitution. All our miseries in one way or the other are linked to this phenomenon.
To begin with, the generals who as leaders of army were supposed to defend the frontiers of the country and owe allegiance to the representative government and assist it in extraordinary situations within the country on being called, assumed the role of the rulers by deposing the representative governments and getting their acts of sedition legitimized by a pliant judiciary under doctrine of necessity. The military regimes of Ayub Khan and Zia-ul-Haq utilized the state owned radio, TV and a captive media to project themselves as saviors of the nation in their capacity as guardians of the physical as well as ideological frontiers of the nation.
The concept of being guardians of ideological frontiers was actually used to justify repeated military interventions. That effectively blocked nation’s march to its cherished destiny of a democratic rule in the country as envisioned by Quaid-i-Azam. Not only their skewed security concepts and unimaginative acts of embroiling Pakistan in conflicts in Afghanistan created a ‘Frankenstein’ called the Taliban, but also pose an existentialist threat to Pakistan.
Now we have judiciary, which played an abetting role in perpetuating the rule of generals, casting itself in the role of a savior. It is pertinent to point out that most of the restored judges of the Supreme Court including the chief justice either validated the takeover by General Musharraf or took oath under PCO enacted by him. In that respect they also have a tainted past. However, during the movement for their restoration against their unconstitutional removal by Musharraf and thereafter, the civil society expected them to function as independent judiciary and uphold the constitution, entertaining the hope that their ordeal during deposition might have brought the necessary transformation in them.
But unfortunately their hopes have failed to materialize as the judges in their enthusiasm to atone for their past follies have cast themselves in the role of legislators and rulers inebriated by a feeling of self-righteousness. I could not agree more with the observations of Islamabad based constitutional expert Babar Sattar who in one of his recent articles said, “A self-righteous court that starts to believe in its own rhetoric as it lives off the goodwill accumulated during a historic event is most of all a danger to its own credibility and purpose” Referring to review judgment in Arsalan Iftikhar case he said, “It is the remedy proposed by the review judgment that is most painful and indicative of the harm being caused by the manner in which suo motu jurisdiction is being exercised by the SC. The Arsalan Iftikhar review case seems to lay down new law: if you prima facie establish that an investigation against you is not being conducted fairly, you have a right to ask the court to suspend functioning of the state investigation machinery and replace it with a stand-alone investigation commission reporting directly to the apex court.”
The justice system of a country has three components i.e., investigation agencies, prosecution and finally the judges. The court by suspending the functioning of the investigating role of NAB has not only sabotaged the existing legal arrangement but its judgment has also created a new law, which according to the constitution it is not competent to enact. The decisions given by the court in the NRO decision implementation case, PCO judges case and appointment of chairman NAB case, on scrutiny also reveal that the court has violated the internationally established principles of jurisprudence, contradicted its own judicial reasoning and in certain cases violated the constitution itself.
In the PCO judges case the court nullified their appointment being unconstitutional but protected the decisions given by them. However, in the NRO case while declaring the law ultra vires it violated its own reasoning in the PCO judges case by not extending the same treatment to the beneficiaries of the said law. In the appointment of chairman NAB case, the petitioners had challenged the appointment on the plea that the government had not consulted the opposition as per law before making the appointment. The court declaring the appointment as illegal also demanded a role for CJ in future appointments. That clearly constituted encroachment on the powers of the executive and breach of the NAB Ordinance.
The Supreme Court even opted to hear challenges to the eighteenth amendment in violation of article 239(5)(6) which says: “No amendment of the constitution shall be called in question in any court on any ground. For the removal of doubt, it is hereby declared that there is no limitation whatsoever on the power of Majlis-e-Shoora (Parliament) to amend any of the provision of the constitution”. The court actually forced the government to re-amend the constitution to its liking. Repeated interference of the court in the appointments and transfers of bureaucrats and other matters falling under the authority of the executive have almost paralyzed the functioning of the executive. On top of that the roller coaster manner in which the contempt case of the former prime minister was decided, belied the internationally recognized principle of restraint by the court. The decision also circumvented the operation of article 63(2)(3).
The foregoing facts establish it beyond doubt that judges have also been acting as legislators and rulers. The dilemma is that the decisions given by the SC after achieving finality become binding whether in conformity with the constitution or otherwise. If the SC continues with its present indiscretions, it would pave the way for judicial interference in the spheres of other organs of the state and make governance even more difficult, with disastrous consequences for the country.