Judicial overreach

The separation of powers must be maintained

The judiciary though independent, is an equal co-ordinate branch of the government and is charged with the duty and power to interpret, construe and apply the Constitution and law, but in exercise of this power, the judiciary claims no supremacy over other organs of the government, suchas the legislature, but acts only as an administrator of the public will.

Judicial encroachment or overreach is when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government. The Supreme Court’s verdict in Suo Moto Case No.1 of 2022 has come under some scathing criticism in a section of political circles. The short order in that case has declared the ruling of the Deputy Speaker on the no-confidence vote against Prime Minister Imran Khan as unconstitutional and of no legal effect.

Many constitutional lawyers see the order of the August Court as running counter to the principle of trichotomy of powers and sovereignty of Parliament as contained in the Constitution of Pakistan. The last paragraph of order which read as “Any order of the Prime Minister and the President shall be subject to the order of this Court” finds no constitutional legitimacy and it amounts to constitutional impropriety.

Our codified constitutional texts spell out the powers of the legislature, executive and judiciary explicitly. When the judiciary encroaches upon the other branches of the government and assumes the function of judicial legislation or judicial policymaking, it ruptures the fine line of separation of power and weakens the public trust reposed in the judiciary. Not to speak of the ruling of the Speaker and its constitutionality, the Supreme Court’s interference with the proceedings of the Parliament is not only unwarranted by the Constitution but also violates the principle of parliamentary privilege. Under which provision of the Constitution the August Court binds the Speaker National Assembly to summon and hold a sitting of the Assembly on a day specified by it and not to prorogue the assembly unless the resolution on vote of no-confidence against the Prime Minister is disposed of? Giving a timetable for how the National Assembly session should proceed and dictating the speaker to act in a particular manner amounted to interfering in the affairs of the Lower House and violating the Constitution.

It is advisable for the judges of the apex judiciary that they should not adjudicate upon the matter involving a political question and let it be resolved through a political process

In the 1973 Constitution there are some ouster clauses. An ouster clause is a provision in a parliamentary statute which excludes certain actions and decisions from judicial review in the interests of the smooth administration of justice. Article 69 of the Constitution of Pakistan deserves a special mention here which reads as “the validity of any proceedings in the Parliament shall not be called in question on the ground of any irregularity of procedure”.

Recently, in the case of Yousaf Raza Gillani vs Federation of Pakistan, Islamabad High Court dismissed a petition by the former Prime minister challenging the results of the Senate Chairman election. It ruled that the proceedings of the Parliament are immune from the interference of the high court and CHief Justice Athar Minallah wrote further that the language used by the framers of the Constitution was unambiguous and effective in order to prevent a court from encroaching upon the independence of the Parliament. Any attempt to interfere in parliamentary proceedings would undermine the dignity, prestige and independence of Parliament. The Supreme Court of Pakistan has upheld the principle of parliamentary privilege in its number of judgments, but the present case is a deviation from its earlier rulings.

Whenever the Supreme Court drags itself in political matters and decides political questions where there are no judicially discoverable and manageable standards for resolving them, it shakes the public trust reposed in judicial institutions. Therefore, certain allegations of unconstitutional government conduct should not be ruled on by the courts and should be left to the politically accountable branches of the government, the Executive and Parliament. The constitutional propriety demands that some matters are to be resolved in the political process. The encroachment on the Executive’s and Parliament’s domains by the judiciary lower the image of the judiciary in public.

On this basis, Justice Frankfurter, of the US Supreme Court, argued that the court should not have decided whether malapportionment violates the Constitution, and the federal courts should not review impeachment proceedings conducted by Congress because any ruling would jeopardize the court’s credibility and prestige. The Supreme Court of Pakistan has held that any question being a political question would not deter the court from determining it on the touchstone of the Constitution, but while construing a constitutional provision, the approach of the court should be dynamic, progressive and it should not violate the doctrine of separation of powers.

Justice Mansoor Ali Shah, one of the leading Justices of the Supreme Court of Pakistan, has ruled in The Mall Road Traders Association case that when judges commit “judicial overreach” they violate their oath. He further states that judicial overreach is transgressive as it transforms the judicial role of adjudication and interpretation of law into that of judicial legislation or judicial policy making, thus encroaching upon the other branches of the Government. Therefore, it is advisable for the judges of the apex judiciary that they should not adjudicate upon the matter involving a political question and let it be resolved through a political process.

Mian Rauf
Mian Rauf
The writer can be reached at [email protected]

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