Our judicial branch has accumulated significant power in the political realm. And this is dangerous for democracy. In the last one and half years alone, judges have exercised jurisdiction on political questions unsparingly ignoring the traditional fetters of restraint, deference, comity and even ripeness. They have also raised and settled matters that are non-justiciable.
Apart from the traditional checks, the judicial branch no longer operates, it appears, “subject to the Constitution” and is propelled by an individual judge’s sense of righteousness and moral compass. The courts have been in headlines more than any other coordinate branch that in itself is a worrying trend but it isn’t because they are functioning well, or functioning at all, rather due to their misguided zeal to write political opinions and to pander to the galleries. Often, judges in this period have struggled to discuss and apply precedent. But, in a new normal, if the superior courts are not bound by the Constitution, they are certainly not limited by stare decisis either.
The last year and half would probably go down as one the worst phases of judicial activism. It started with the decision to set aside the speaker’s ruling (Suo Motu Case No.1/2022). The court dialed back the clock, directed Parliament to hold the vote of confidence on a specific time and day and then the courts were opened in the late hours of the night to enforce their direction.
Power, with the Supreme Court, if not informed by judicial restraint, inevitably encroaches upon the authority of the coordinate branches. The decision was a significant assault on the independence of the parliament. The political chaos that imbued from that one decision has still not settled. An endless loop!
The superior courts since the Speaker’s ruling decision have only reinforced their self-assumed messiah syndrome, becoming in the process, all powerful kingmakers in our democratic dispensation. They have assumed jurisdiction on political questions, without blinking on maintainability, including on issues of rejected votes inconsistently, party defections without applying the precedent and on oath of political offices with no textual basis in the opinions.
While there is never a good argument for writing of letters by the judges for public consumption, an ominous trend started by the incumbent chief justice, we could take the recent letter from the six judges of the Islamabad High Court, as a point on the curve, to start over. Hold the judicial convention for the sole purposes of in-house accountability and to urge Parliament to revisit the veiled and soiled appointment process of the judges. Unless we are prepared to deliberate and debate on appointing judges on merit through an objective criterion our democracy remains under threat from the judicial branch.
The Supreme Court, more than once, has lumped together the advisory jurisdiction with other jurisdictions vested in it, including the original jurisdiction, which is not what the framers had envisaged. There is a good case to rid ourselves of advisory jurisdiction all together, given how it has played out, and more so because it remains a major affront to separation of powers. Would the executive dare disagree with the opinion of the Supreme Court in advisory jurisdiction?
The trend of influencing political outcomes through court decisions did not ebb under the incumbent chief justice. The symbolic case opinion, Civil Petition 42 of 2024, perhaps would go down as one of the most controversial decisions in our constitutional history. The decision sadly disenfranchised millions in the country and palmed on political instability like no other decision in recent memory; effectively robbing an entire political party, which has not been dissolved – yet, from due representation and political mandate.
The doublespeak is particularly alarming as the same apex court has acted conservatively and condoned stifling space for free speech. It also remains dicey on the question of trial of civilians by the military courts as well as arbitrary arrests of political workers. This institution is increasingly out of touch with today’s Pakistan that has nearly 73 percent of its population under the age of 30 and has more than 72 million social media users. People continue to be critical of the supreme court. A ban on X would not salvage its plummeting stocks.
Who will guard against the Praetorians? The good work our judicial officers do, and there are a few, is always eclipsed by the political opinions or unrestrained, trigger happy approach of their peers on the bench interfering in policy matters. Lately, the Islamabad High Court even ventured to regulate roti prices in the city. The Lahore High Court in the past has even sought to regulate the electricity bills for the consumers.
One bench in Lahore is operating suo motu to address smog issues– completely unfettered by constitutional trappings. Small wonder then, orders and judgments of judicial officers, are not enforced by the executive with the deference demanded by the Constitution. Where do we go from here?
While there is never a good argument for writing of letters by the judges for public consumption, an ominous trend started by the incumbent chief justice, we could take the recent letter from the six judges of the Islamabad High Court, as a point on the curve, to start over. Hold the judicial convention for the sole purposes of in-house accountability and to urge Parliament to revisit the veiled and soiled appointment process of the judges. Unless we are prepared to deliberate and debate on appointing judges on merit through an objective criterion our democracy remains under threat from the judicial branch.
