French commentator and political thinker Montesquieu, in 1748, wrote:
“When the legislative and executive powers are united in the same person or in the same body of magistrates, there can be no liberty… there is no liberty if the powers of judging is not separated from the legislative and executive… there would be an end to everything if the same man or same body… were to exercise the powers”.
Pakistan has a history of facing situations or scenarios where our courts are found involved in or tend to take jurisdiction of constitutional matters that are political in nature, and are then criticised for being partisan or for wrongly exercising jurisdiction in matters that fall under the domain of the legislature.
In this article, we will try to determine the reasons behind this stretch of jurisdiction by our superior courts. Many a times, we find our Parliament and politicians divided on many crucial and important constitutional matters, and hence, this breeds an urge to interfere by our courts. This urge to interfere has been criticised throughout our constitutional and political history. Political parties and parliamentarians have or are alleged to have, because of weak democratic institutions, failed to live up to constitutional ethos and norms, and hence, disputes come before courts for adjudication, where courts become part of the political quagmire.
While not always, on many occasions, there have been visible signs that the courts have exhibited favouritism and a tendency to weaken the already weak democratic institutions and parties. Many jurists are of the view that the courts are over-stretching their powers by looking into matters that purely fall in the domain of the Parliament or the executive branch. I agree to the extent that the political system in Pakistan has remained weak due to many powerful external and internal factors, but the courts are not too different in the performance of their constitutional and legal duties. The legal system itself is very weak, and it has failed to deliver justice to the ordinary people, which is their primary duty and function. And the worst is that there is no visible internal or external accountability mechanism to check this failure.
Where the Parliament seems not interested in performing its functions, the first remedy is provided in the Constitution, which is that the voters will reject them
The power equilibrium in this uncontrollable quest to grab more power by our primary institutions has failed, and the state has been unable to perform its basic constitutional duties. This has become a vicious cycle where democratic institutions are criticised for being corrupt and inefficient, hence inviting interference from different institutions, and with time, those institutions face the same criticism of corruption and inefficiency. This shows that a solution for a corrupt and inefficient Parliament or politicians is simply their removal. But a demand by the public to ensure accountability is then overlooked by the courts and other institutions. The real solution, thus, is the emergence of a mature, efficient and honest Parliament or political class that can perform their functions and duties as enumerated in the Constitution. In my view, the best course is to handle the situation as provided in the Constitution and maintain the principle of separation of power.
Ultimately, it is the Parliament that can solve these problems with the constitutional support of the judiciary and the executive. All other attempts have failed, not only as institutions but as a state. Where the Parliament seems not interested in performing its functions, the first remedy is provided in the Constitution, which is that the voters will reject them, and other measures in individual cases are given in laws.
In the current scenario, my view is that the courts should refrain from taking on political matters, even though judges, too, have complained about being threatened or intimidated while deciding these matters. This refrain from the adjudication of political matters will give rise to the depoliticisation of the judicial system and keep it away from criticism, and they can perhaps better perform their primary function of providing justice to the ordinary people and protecting their human rights. Many illnesses, including corruption and lack of merit, may be replaced by an honest and able judiciary.
Though many will criticise it for not interfering in a constitutional crisis that may result in political instability, my view is that if interference from the courts is not working, then perhaps the courts should refrain from interfering so that the political institutions devise methods to tackle their crisis. Our justice system may heal and, with that, strengthen our democracy.
This ordeal of criticism must end where courts are cheered or slogans are raised against them for matters that actually are not for them to be adjudicated in the first place, and the courts should not attract people hopes for issues whatever their importance if those issues do not come into their domain. Same applies to all other institutions.