Like a carnivorous animal that cannot change its man-hunting ways once it gets a taste of human flesh, a human being who once gets a taste of power will similarly not let go of it easily. Our judiciary is a case in point. How else can you explain the Supreme Court’s taking of suo motu notice of GST tax, the price of petrol, ordering the immediate appointment of the PIA chief, declaring the postings and transfers of hundreds of civil servants null and void, and chiding the brand new government to act ‘democratically’ when the new government was barely a day old.
As everyone knows, our entire justice system, from the lowest kutchery courts upwards, is a cesspool of corruption, mountain of inefficiency, a black hole of pending cases. Yet our apex judiciary, abdicating its own duty to put its own house in order, rushed helter-skelter to take notice of the GST tax imposed by the government, as if in a race with the government for control of executive power.
People have a right to ask what exactly this judicial overreach and arbitrariness and all the Supreme Court notices and orders have actually achieved for the country or its people. Have they made any difference in the lives of the ordinary people? Have they economically benefited the people? Have they made the country safer and stable? Have they made the availability of essential commodities, electricity, and other basic items easier and less expensive? Has the overall economy of the country improved? Has the security situation in Balochistan and Karachi improved after all the suo motu hearings?
Of course not. On the other hand, the situation on the ground has undeniably further deteriorated in all of the above areas. It seems that our judiciary has wasted the country’s precious time and limited resources on a myriad of frivolous, non-productive suo motu notices, hearings, inquiries, petitions such as the memo or NRO.
We all remember only too well how the judiciary in its whimsical pursuit of the NRO case put the government’s stability and the state’s viability at grave political risk, only for the Swiss authorities to correctly dismiss it.
The judiciary’s obstructionist role in such commercial cases as the privatisation of Pakistan Steel Mills, and what may be deemed as tortuous interference in international contracts having binding arbitration clauses such as the Reko Diq-TCC and Turkish Powerboat rental cases, may possibly result in huge economic losses for our cash-deprived nation.
Accordingly, the rule of law and the bedrock principle of separation of powers of the three branches of the government embedded in our constitution have been dealt a severe blow. Many of the country’s key institutions like the police, FIA, FC, NAB and other law-enforcement agencies and other institutions and bodies like OGRA have been undermined.
To stifle the voice of the people, to silence any criticism in the media, and to pre-empt any public debate pertaining to the judiciary, the contempt of court powers under Article 204(2)(b) of the Constitution of Pakistan to threaten all and sundry who dare question the judiciary is having a chilling effect on that most fundamental of human rights: the right to free speech and expression.
And as all of us have by now come to shockingly realize, through the ad nauseam invoking of the suo motu Article 184(c)(3) of the Constitution, our superior courts have been ruling on any matter under the sun they desired, from the price of samosas to the prices of CNG and electricity, to the transfers of civil servants, to removal of an elected head of government, all under the pretext of ‘enforcement of fundamental rights’ or as a ‘matter of public importance’.
Therefore, as a first step, parliament should scrap Article 184(c)(3) of the constitution, the source of all judicial overreaching, and discard Article 204(2)(b). Our people should know that neither this ‘suo motu’ nor the ‘contempt of court’ provisions in their present shape or form exist anywhere in the world.
Such sweeping, anti-democratic Articles were surreptitiously and spuriously inserted in the constitution by a dictator to be subsequently used as authoritarian tools or ploys by the apex judges for the sole purpose of suppressing the elected representatives and will of the people.
In addition, the elected parliament must modify other relevant provisions in the constitution and laws and insert appropriate new provisions that would deprive the judiciary of the legal tools to play the role of a super-executive and super-parliament, unchecked by anyone and accountable to no one.
New provisions in the constitution and laws must clearly stipulate that the sole function of the apex court is to apply and interpret the constitution and laws only in actual, adversarial cases that come before it on appeal from lower courts. The constitution should expressly state that the judiciary shall have no business interfering in or encroaching upon or advising the executive and legislature on matters relating to governance, execution or implementation of laws or legislation.
The writer is a US-based corporate attorney, author, independent analyst and writer