.. by General Raza Muhammad Khan (R)
TRICHOTOMY of powers is the norm in most democracies, so that no branch of government wields more power than the others and yet it provides checks and balances between all.
But sometimes this is easier said than done, due to unintentional omissions, ambiguities or gaps in the constitution or interpretation of one’s mind.
As seen recently in Pakistan, this necessitates judicial intervention in the realm of parliament, and as a result, the judiciary is wrongly accused of politicization.
But in many countries, judicial review is seen as a key check on the powers of the executive and legislature, if they overstep their authority.
This is more applicable where the so-called common law legal system is in vogue.
Pakistan inherited and adopted this system from the British at independence and therefore judges are sometimes seen as sources of law, capable of creating new legal principles or rejecting legal doctrines that are no longer valid.
The other distinct legal system is known as “civil law”, in which judicial review is less pervasive, legal precedent carries less weight, and it is considered fair to treat similar facts differently on different occasions and in different environments.
The former has sometimes led to real or perceived so-called “judicial activism” in the past in Pakistan.
However, theoretically, in Pakistan, the powers of the legislature and the executive derive from Article 7 and that of the judiciary from Part VII of the Constitution and neither can encroach on the jurisdiction of others.
Under Article 184(3) of the Constitution, the Supreme Court (SC) of Pakistan also has the power to exercise suo motu powers to take action on any matter, subject to any of the three conditions following: it must be of public importance or must relate to fundamental rights enshrined in the Constitution and there should be no petition listed to be heard by the SC, obliging it to take action on its own initiative.
For example, exercising this power, the Scholar SC has rendered judgments related to the reversal of the privatization of steel mills in Pakistan (2006), closure of rental power projects (2012), invalidation of the mining company Reko Diq (2013), the creation of the dam construction fund and ruled on the eligibility of parliamentarians with dual nationality (2018).
Prima facie, the first three verdicts were within the realm of the executive under the “principles of policy” set forth in Chapter 2, Part II of the Constitution.
Moreover, it is unclear whether these interventions contributed to good governance, if that was the purpose.
However, such decisions tend to divert time and resources away from much-needed justice reforms, to getting people quickly helped through the speedy resolution of cases.
Ironically, although we inherited this system from the British, acts of Parliament cannot be overruled under the doctrine of parliamentary sovereignty in the UK.
Another example is that of the Netherlands, where the Constitution expressly prohibits the courts from ruling on the question of the constitutionality of primary legislation.
In the EU, only special constitutional courts can review legislation. In Pakistan, perhaps, neither the government nor the legislature has a significant role in the appointments of senior judges because the Judicial Commission has majority representation of judges and only nominal representation from government and bar councils.
Based on this, critics argue that this arrangement may conflict with the spirit of checks and balances and could also hamper judicial accountability.
Moreover, with the existing judicial system, where cases remain pending for years or stay orders remain in place for a long time, the sustainability of economic or business activity becomes questionable.
In addition, there are said to be more than 2.1 million pending court cases in Pakistan, mainly due to three main reasons: the lack of capacity of the judicial system, the absence of judicial reforms and the inability of politicians to resolve the constitutional and political problems outside the courts and inside. Parliament.
After debate by experts in the field, the obstacles highlighted in this interpretation should be removed through collaborative efforts of the executive, judiciary and parliament, through concerted efforts and frequent and close interaction.
In the event of irreconcilable differences, the President could call an emergency meeting of Parliament under Article 54 of the Constitution or issue an ordinance for a compromise solution.
The three pillars of the state mentioned above; hold the state structure of Pakistan and are the foundation of all progress and development.
Therefore, they must work in tandem, so that the fourth edifice remains stable. Nevertheless, as in the past; circumstances may arise where harmonious interaction becomes difficult or constitutional remedies are ineffective.
In such situations, power could be delegated, temporarily, to a new constitutionally created, neutral and suitably composed Supreme National Council (SNC), in the broader national interest, for mediation and arbitration, in order to avoid extra-constitutional interventions and put the country back on the path to democracy.
The SNC could also include the heads of the Pakistan Defense Forces, to avoid any involvement or unconstitutional coercion on their part.
Alternatively, as in the past, the president could be granted the discretionary power to dissolve the National Assembly and call new elections to deal with these backgrounds.
The strengthening of judicial capacity, the constitutional amendment to limit the motion of no confidence in Parliament to only once a year and electoral reforms, including the gradual introduction of EVMs for the ballot, should also be accelerated for greater legitimacy, transparency and post-election political stability.
Hoping that we can resolve the declared difficulties of our democracy, at the earliest, I must emphasize that this interpretation is not intended to undermine the judiciary or Parliament.
It mainly highlights a perspective, lurking in the minds of conscious Pakistanis, who have high hopes for the future of democracy and who want to see Pakistan as a peaceful, stable and prosperous country.
Finally, it is only through meaningful and lawful restructuring that a fair distribution of power, unity of purpose and an enabling environment could be ensured, in order to promote the national interests of Pakistan.
—The author is the former president of NDU.