The ruling coalition chose to boycott the sessions of the Supreme Court on Monday in an unusual action, citing the “loss of confidence” in the judges’ hearing the case regarding the legitimacy of the election of the Punjab Chief Minister. The Supreme Court declined to convene a full court for the hearing, which led to the ruling.
The third pillar of the state’s credibility is being questioned, perhaps not for the first time, but there is far more at risk right now because the institution is embroiled in a political power struggle. The newest dispute over the function of the judiciary signals an oncoming systemic breakdown because the other two institutions of the state, the executive and the legislature, are paralyzed. As expected, the Supreme Court ruled that Pervaiz Elahi was appointed chief minister of Punjab and Hamza Sharif’s election was invalid. The coalition in power has taken a hit as a result of the decision. But the situation is far from resolved.
The Supreme Court is increasingly serving as the setting for continuing political conflicts as the political crisis gets worse. The conflicting parties ask the courts to mediate in matters that should have been resolved by parliament. It is very challenging to arbitrate delicate political and constitutional issues to the satisfaction of both sides in a highly inflamed political environment.
Unsurprisingly, subsequent court decisions have sparked a greater debate. The issue has also grown as a result of judicial activism. A hazardous imbalance has been produced by the judiciary’s overreaching, which frequently intrudes on the authority of the administration and the legislative. The highest court’s legitimacy has occasionally been impacted by the perception that there has been an attempt to change the Constitution rather than strictly adhere to legal interpretations.
It’s critical to allay any worries people may have about the Supreme Court’s objectivity.
The recent ruling on Article 63-A of the Constitution, which deals with the defection clause, serves as a good illustration. The majority of legal experts feel that the decision invalidating the votes of departing members goes beyond the simple reading of the law and is an effort to amend the Constitution. The decisive decision has been the primary driver of the debate around the choice of the Punjab chief minister. The situation has also been compounded by a few other decisions that seem incongruous.
In this case, it was appropriate to request that a full court should be convened to examine the decision regarding the defection clause. The demand for a full-bench court allegedly received the support of some retiring Supreme Court justices as well. Retired jurist Maqbool Baqar reportedly cautioned against attempts to change the Constitution.
The fact that the same bench is chosen to hear delicate political and constitutional cases while other senior judges are disregarded raises concerns about the validity of the rulings. The institution, itself, voiced criticism of such a setup.
Justice Maqbool Baqar, who was regarded as one of the most impartial and independent judges, said in his farewell speech in April this year: “Excluding certain judges from the hearing of sensitive cases on account of their independence and impartial views has an adverse effect on the impartiality of judges while also tarnishing the public’s perception about the independence and integrity of the judiciary.”
Justice Baqar is not the only judge to voice his concerns about the bench’s makeup in constitutional cases. Qazi Faez Isa, the senior poise judge of the Supreme Court, questioned the composition of a larger bench to consider the presidential referral that affected the interpretation and extent of Article 63-A in a letter to the chief justice that was also covered by the national media in March. He reportedly complained that the senior-most judge was not contacted when deciding who would sit on the bench to hear the cases. He emphasized that the judges who were fourth, eighth, and thirteenth on the list of seniority constituted the bench.
He stated that it was worrying since there was a chance it might raise needless doubts. In the letter, he stated: “After all, the Supreme Court has frequently reaffirmed the adage that justice is not only done but is also perceived to be done.”
One of the most vocal justices, Justice Isa, previously voiced his disapproval of judicial practices. It is possible that Imran Khan’s government filed a reference against him because some of his verdicts had upset the establishment. The bar and the bench supported the judge, therefore the attempt to have him dismissed was unsuccessful. His criticism of the bench construction process on crucial constitutional problems has shown the weaknesses in the higher judiciary’s operation. To restore the institution’s reputation, it is necessary to solve these issues. In order to increase the authority of the court, it is crucial to allay worries that have been raised regarding the impartiality of the supreme judiciary. The reputation of the judiciary has been severely harmed by the judicial activism practiced by former chief justices Iftikhar Chaudhry and Saqib Nisar.
The democratic process in the nation was hampered by some of their populist judicial actions that drastically intruded on the domains of the executive and legislature. The executive was hobbled by careless judicial involvement, which made it more difficult for the elected governments to carry out their duties. Additionally, it increased the disparity in power between the state’s pillars. Power and discretion must be used sensibly and fairly in order for the system to function well.
Indeed, given the nation’s escalating political polarization, these are trying times for the judiciary and other state institutions. The courts must resist pressure from entrenched political interests. The country’s democratic process and rule of law both suffer greatly from any perception of giving in to pressure. Furthermore, it is crucial that political leaders refrain from involving the judiciary in politics. Instead of turning to the Supreme Court for guidance, they must attempt to address political disputes through democratic forums.
Edited by: Amna Sheikh
Written by: Aqsa Shahzadi.
Aqsa has a Master’s in Education from SZABIST and is a freelance contributor. She can be reached at: Shahzadiaqsa03@yahoo.com.