Only after 26 years of its inception, after navigating a host of political struggles and the failure of two earlier constitutions, Pakistan succeeded in having a uniform code of its own back in 1973, called the Constitution of the Islamic Republic of Pakistan. Despite being subject to numerous amendments, the code provides for a democratically elected and parliamentary form of government with the establishment of a Supreme Court to deal with, among other things, the arbitrary use of governmental powers and the protection of fundamental rights protected under the code. This judicial embargo on the legislative powers of the Parliament and administrative checks on public functionaries arms the judicial elite of the country with unique interpretative powers to have a final say in a number of controversies. The Supreme Court can strike down any extra constitutional legislation or undo any administrative act not warranted by law.
These unbridled powers of the Supreme Court - of interpreting and striking down legislation, are often criticized by lawyers and politicians alike. Politicians in Pakistan are of the view that Parliamentarians, being the elected representatives of the people, should have a final say in controversial matters. On the other hand, the judicial elite, who view themselves as guardians of the Constitution, claim to have a worldview grounded in sound jurisprudence. This shifts the locus of dispute resolution from the Parliament to the apex Court – from an accountable body to an unaccountable one.
Politicians believe that they are accountable to the Parliament through regular elections, and a host of parliamentary and judicial checks. Judges on the other hand, are appointed rather than elected, and hence lack democratic legitimacy. Courts are viewed as democracy’s referees and are required to demonstrate deference to parliament. However, judges in Pakistan are seen as having an agenda of their own, particularly in cases aimed at holding the government to account, which not only undermines policies pursued by the elected government and approved by Parliament, but also endangers the effectiveness of democracy and federalism.
J.A.G Grifith, in his 2008 book The Political Constitutionalism opined that ‘judges cannot be seen as politically neutral and they are not effective guardians of individual liberty.’ Adam Tomkins, in his 2005 exposition Our Republican Constitution, suggests that, ‘no matter how democracy is defined, judges can never hope to match the democratic legitimacy of elected politicians.’ However, if there is a debate as to who has the final word in controversial cases between the courts and the Parliament, there is no clear and straightforward answer.
The courts operate on the premise that the Constitution is the only supreme law of the land and no act of the Parliament is superior to the Constitution, thus anything that challenges said supremacy ought to be struck down. Sometimes, judges are accused of interpreting laws according to their ideological preferences, while ignoring the intentions of the Parliament and objectives of the Constitution.
Parliamentarians on the other hand maintain that Parliament is supreme and it has the authority to change even the Constitution itself by an amendment bill, which has to be passed by a two thirds majority. Judges being appointed by the executive therefore, must show deference to Parliamentary supremacy and democratic norms. The inherent rifts and overlapping powers of the Courts and the Parliament do not only create uncertainties around the legal system, but they also shake the trust that the public places in the judicial and legislative system of the country.
Supreme Court decisions, irrespective of their validity and veracity, are adhered to and respected as judicial precedents until they are reversed by the Supreme Court itself or the Parliament legislates over them otherwise, rendering the laws uncertain and ambiguous. A recent example of this can be seen in varying judgements of the Supreme Court over Article 63 of the Constitution wherein the Supreme Court disqualified politicians for life and termed lifetime disqualifications under Article 63 a “black law” afterwards. A rather activist approach of the Court of final resort towards political cases adds a lot to the erosion of its legitimacy.
The same applies to acts of Parliament. A bill passed by the Parliament and assented to by the President is law until it is repealed or amended by the Parliament itself or is challenged and altered by the Court, thus, creating ambiguities towards the existence and applicability of laws. The Parliament by its composition and procedures is well-equipped to hold inquiries and debates on proposed legislation, which is vital for certainty in law making. However, insufficient accountability of parliamentarians, the lack of voter turnout in the electoral process, and questions over the fairness of elections are few of the pitfalls of the parliamentary law-making processes.
The legal system of a state based on the trichotomy of powers fails to serve its objectives when one branch of government deliberately overreaches and interferes with the affairs of the other branches. Strict adherence to separation of powers is impracticable; ultimately, the guards have to guard themselves through constructive dialogue, self-correction and through good faith deference to each other.