Constitutionalism the only remedy

“Even the most ardent purposivists must first and foremost primarily respect the actual text of a statute and should not ignore it for purposes of some greater good or desired outcome in a case.

As Judge Katzmann points out, the Ledbetter saga is a testament to the appropriate relationship between the judicial branch and the legislative branch. Interpreting statutes is the job of judges, but the legislature has the power (and some say the duty) to correct a judicial interpretation that is inconsistent with how Congress actually intended a statute to be interpreted.

In this sense, the legislature is dominant”—Statutes—Clear Or Confusing—What is a judge’s responsibility? By Michael M Baylson, quoting Judge Robert A Katzmann and judgement of Supreme Court of United State in Ledbetter v. Goodyear Tire & Rubber Co[550 U.S. 618 (2007)]

On Pakistan’s 77th independence anniversary (August 14, 2024), the nation found itself in the grip of complex and evolving challenges across political, democratic, economic, and judicial spheres. Persistent political instability has characterized the country’s recent history, with frequent government shifts and ongoing debates over the legitimacy of political processes.

Democratic and constitutional institutions, including Parliament, are continuously facing widespread criticism for their perpetual failures, loss of credibility, incompetence and ineffectiveness. Although Parliament has the exclusive powers to frame laws, it often struggles to assert its due role, leading to incomplete or inadequately addressed legislation.

The executive branch, responsible for implementing laws enacted by Legislature, frequently falls short of fulfilling its responsibilities, creating a governance vacuum where laws/policies remain unexecuted or poorly enforced. Economic challenges, such as widening fiscal deficit coupled with burgeoning debts, high inflation, rising unemployment, and inconsistent reforms, further exacerbate social inequalities thus hindering development.

In terms of law and order, Pakistan grapples with security issues, including terrorism and criminal violence, which undermine public trust in both law enforcement and the judiciary. The issue of judicial activism has become increasingly prominent, with the judiciary sometimes perceived as overstepping its constitutional boundaries.

The Supreme Court has at times made decisions based more on judicial conscience than strict textual interpretation, leading to accusations of bias while undermining the trichotomy of powers. Powerful institutions, including the military and judiciary, have frequently violated their assigned constitutional roles. Historically, the military has been the primary power grabber, while judiciary has recently begun to assert itself more in political matters.

Many judicial decisions involving constitutional-cum-political issues have attracted public criticism. For example, in Zafar Ali Shah v. Pervez Musharraf (PLD 2000 SC 869), the Supreme Court’s endorsement of General Pervez Musharraf’s coup and granting powers even for constitutional amendments have stigmatized higher judiciary. It not only bestowed veneer of legality to an unconstitutional military takeover, but also allowed him to mutilate the supreme law of land, as was done by General Ziaul Haq after toppling an elected government on July 5, 1977—leading to the darkest era after 1971 debacle. Even successive elected governments after 2008 elections have failed to undo Zia’s legacy till today.

In Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), the Court’s validation of the National Assembly’s dissolution and the dismissal of Prime Minister Benazir Bhutto appeared to align more with political interests than constitutional provisions. More recently, in the NAB Amendment Case (CONST.P.21/2022 AND C.M.A.5029/2022), the Court overturned amendments aimed at reforming the National Accountability Bureau (NAB), which critics argue represented judicial overreach and transgression into legislative functions.

In the recent Sunni Ittehad Council vs Election Commission of Pakistan (Civil Appeal No. 333/2024, CMA No. 2920/2024, Civil Appeal No. 334/2024, Civil Petition Nos. 1612 to 1617 of 2024, and CMA No. 3554 of 2024 in CP Nil of 2024),the short order of 9-mmbers of the bench(majority decision) allegedly “granted a relief which was not even sought as Pakistan Tehreek-e-Insaf (PTI) was not even a party”.

Detailed judgment is yet not released, therefore, propriety demands not to jump to conclusions, as propagated by the ruling alliance government, that the Court “ignored constitutional provisions and the Election Act, favouring a party not involved in the petition”. Article 187 of the Constitution of Islamic Republic of Pakistan [the Constitution] envisages Supreme Court as the ultimate court of justice, not merely a court of appeal. It is bound to do “complete justice”. The detailed judgement will certainly explain the true spirit of Article 51 to dispel allegations that the decision “reflects a departure from constitutional adherence”.

While interpreting the word “government” vis-à-vis the powers of the executive branch, the Supreme Court in the Messrs Mustafa Impex case [(2016) 114 Tax 241 (S.C Pak.)] ruled that no Prime Minister can introduce legislation, finance, or fiscal bills, or approve budgetary or discretionary expenditures independently without first consulting the Cabinet.

However, some recent observations indicate that Chief Justices in the past were reluctant to adhere to the same principle ordained in Article 176 of the Constitution, “The Supreme Court shall consist of a Chief Justice to be known as the Chief Justice of Pakistan and so many other Judges as may be determined by Act of Majlis-e-Shoora (Parliament) or, until so determined, as may be fixed by the President”. This clearly provides that all judges together constitute Supreme Court and not the Chief Justice alone.

At this critical juncture of its history Pakistan faces daunting challenges across political, economic, and judicial fronts. The economy teeters on the edge of collapse, heavily reliant on global lenders for balance of payments needs with any delay, risking default. A passive foreign policy fails to resolve issues with friendly nations or secure new trade and investment opportunities.

The judicial crisis deepens, with visible divides within Supreme Court and High Court judges, and allegations of moral and corrupt practices. Despite complaints filed with the Judicial Council, no action has been taken due to internal conflicts within the council.

It is critical to reaffirm supremacy of the Constitution, which should guide all state institutions. Constitution, as the supreme law of the land, embodies principles of constitutional supremacy and trichotomy of powers, delineating clear boundaries and responsibilities of Parliament, Executive, and Judiciary, responsible for interpreting the Constitution and ensuring its adherence, a task requiring judicial restraint to prevent overreach and maintain balance. It seems appropriate here to quote the following:

“It will not be out of context at this stage to observe that our country has a Federal System of Government, which is based on trichotomy of power, each organ of the State is required to function/operate within the bounds specified in the Constitution”—Syed Masroor Ahsan and others v Ardeshir Cowasjee and others PLD 1998 SC 823

The most recent trends show that judiciary is increasingly being engaged, rather dragged, in political disputes that must be solved through negotiations and in political arena. Dragging in the courts has blurred the fine line between legal adjudication and political arbitrage

The judiciary’s role is to act as a guardian of the Constitution, ensuring that laws and executive actions conform to constitutional mandates and fundamental rights of the citizens, rather than shaping policies or political outcomes. The recent cases of Sunni Ittehad Council and Vote Recounting Matter reflect badly on the performance and credibility of constitutional institutions like Election Commission of Pakistan and political parties—none is ready to ensure free and fair elections thus causing deep distrust and disillusionment in the minds of voters.

Parliament and the Executive must adhere strictly to their assigned roles. Parliament is responsible for law-making, while the Executive is to implement these laws. Both institutions must work transparently and accountably, upholding their constitutional duties without allowing unelected individuals to encroach upon their domains. Effective governance relies on each branch respecting the boundaries of its authority and collaborating to strengthen democratic processes.

In order to ensure a truly accountable and transparent judiciary, adopting global best practices in judicial accountability is essential. Models from the United States and Canada, which include rigorous oversight mechanisms and transparent procedures for evaluating judicial conduct, provide valuable examples. These practices ensure that judicial decisions are made impartially and that judges are held accountable for their actions.

As we celebrate 77 years of our existence, Parliament should commit to upholding the Constitution and strengthening our institutions beyond political affiliations. Judges, too, must pledge to uphold constitutional principles with restraint, avoiding judicial overreach and strictly adhering to their role in interpreting and enforcing the Constitution. Embracing the principles of constitutional supremacy and the trichotomy of powers [constitutionalism] is the only way forward to ensure stability and prosperity for Pakistan.

Copyright Business Recorder, 2024