Daily Times

The judicial coup engineered by our Supreme Court (SC) has to be the first in the democratic world, whereby a democratically elected prime minister (PM) was removed through the machinations of an unelected entity on the charge of contempt of court. As if the ever-lurking threat of a military coup was not enough to destabilise the country and rob people of their sovereign right to govern themselves, this new variant of the coup is both novel and potentially more devastating to the body politic.

After the Gilani case, the disqualification and eventual dismissal of a prime minister would be child’s play for an activist judiciary. All it has to do is to pass a legally controversial order for the chief executive to implement, and upon his inevitable objection and refusal to do so, charge him with contempt of court. And, as the night follows day, the chief executive would be history.

Of late, the spectre of a one-man judicial ‘supremacy’ looms large on the country’s horizon, which could be more subversive and damaging for the country’s interests than a khaki dictatorship. In the case of the latter version, at least you know where it is coming from. It purportedly has a fixed national agenda, a finite timeline, unlike the former, which has no defined mission or duration.

Let us briefly recap some of the key events that have led to such a sorry state of affairs — be it admissions and hearings of the ‘memo’ and generals’ petitions (one based on the actions of a foreign citizen and the other filed by a civilian bystander) or the judgment in the PM’s contempt case (based on an obsolete, non-existent, dead law or 2003 Contempt Ordinance). Whether it was the court order of the disqualification of the PM (in violation of the legislature’s sole, exclusive and incontestable powers of the Speaker to do so), or the court order in the corruption and extortion case of the Chief Justice’s son, all are linked. The bedrock principles of Pakistan’s constitution such as separation of powers, specifically powers of the executive and legislative branches of the government, fundamental requirements of legal standing, direct injury and subject matter jurisdiction, judicial restraint, and respect for constitutionally guaranteed rights such as a right to a jury and fair trial, etc, have been shredded to pieces.

The SC and Chief Justice (CJ) have primarily misapplied the broad discretionary powers of the original suo motu jurisdiction under Article 184 (3) on the one hand, while clamping down on any criticism of their excesses under the threat of contempt of court censure pursuant to Article 204 (2)(A) of the constitution on the other.

Parliament’s repeal of the notorious Article 58 (2) (b) of the constitution defanged the arbitrary powers of a president to dismiss the elected prime minister and parliament, thus diluting the possibility of a military coup. However, Articles 184 (3) and 204 (2) (A) of the constitution have opened the door for the possibility of a judicial coup, resulting in an undemocratic removal of a constitutional and elected head of the government.

The important question for the nation now is how to stop an overreaching judiciary from thus imposing its will on the people and flouting constitutional rule. The answer to this in my opinion is for parliament to close loopholes by enacting a corrective, appropriate amendment to our constitution. That would repeal or revise both Articles 184 (3) and 204 (2)(A) of the constitution and modify other related provisions where necessary in order to make the constitution free of the possibility of being exploited.

Firstly, it would be necessary for this amendment to eliminate or modify Article 184 (3), which incredibly bestows on the apex court almost limitless and unbridled powers of original jurisdiction. Enabling it to adjudicate on its own whim and fancy any matter under the sun in the name of ‘public importance’ or ‘fundamental rights’, it gives rise to the overuse of suo motu. In no other civilised, democratic country of the world do we have the equivalent of Article 184 (3) in its present shape.

The basic function of our SC is to hear, adjudicate and interpret the law on actual cases or disputes between two adversaries that comes before it on appeal. Such appellate jurisdiction and application of law is the court’s primary duty. Its original jurisdiction should be rare and limited to hearing cases between two provinces, or where one province and/or the federal government is a party.

Suo motu action is an antiquated relic of the days of yore when English kings while noticing from their horse carriage an overflowing sewer would instruct the royal court to take suo motu action. It is about time we bid adieu to this obsolete vestige of British colonialism.

Secondly, the proposed amendment must oversee the sweeping contempt of court powers given to the judiciary under Article 204 (2)(A) of the constitution. The contempt provisions of Article 204 (2)(A) are rooted in the narrow objectives of the British rulers to enforce their writ in India to coerce the natives to accept and abide by the empire-serving judgments rendered by its imperialist courts by forbidding the subjects from mocking or ridiculing the kangaroo judiciary via these kind of contempt of court laws.

Modern-day democracies have no such blanket prohibition against criticism of the judiciary or judges since it would be an affront to freedom and human dignity. The Article 204 (2)(A) contempt provision is in clear violation of fundamental rights of free expression and free speech guaranteed by our constitution, having a chilling effect on people’s desires and need to critically discuss and debate the judiciary and its pronouncements. Voices of our citizens have been effectively sealed for fear that any discussion or criticism of the judiciary would be deemed as ‘ridiculing or mocking the judiciary’ under this law.

The overly broad, vague and ambiguous language of Article 204 (2)(A), along with its enabling regulation such as the defunct 2003 Contempt of Court Ordinance, empowers the courts to punish people for scandalising, ridiculing or being in contempt (how do you determine that?). The courts or judges should also be fine-tuned to restrict contempt violations to maintaining the decorum and dignity of the judges by litigants within the premises of the court and not impinging upon the freedom of speech outside the courtroom by the public at large. In the US as elsewhere, the conduct of judges and their decisions are subjected to scrutiny and discourse in the public arena.

Finally, the procedures laid down for the removal and impeachment of judges for judicial misconduct and other offences should be revisited so as to provide for a speedy process and undisputed control of the executive and parliament over it.

A constitution is not a fixed, static document, whose provisions are etched in stone forever. It is a dynamic, ever- evolving work-in-progress as per the requirements of a particular time to reflect the will of the people. For instance, the US constitution at one time provided for slavery with no rights. Consequently, the US Congress through an amendment repealed that provision. There are numerous such examples of constitutional amendments the world over. And parliament is the sole entity entrusted with this task.

An amendment to the constitution when enacted in accordance with the procedure laid down in the constitution becomes a part and parcel of the constitution itself, which the judges have a sworn duty to defend and respect under oath and not to challenge it. An amendment is distinguishable from other legislation; it is not like any other statutory law or an Act passed by parliament. Its constitutionality cannot be challenged since, upon its passage, it becomes the constitution itself — the supreme law of the land.

The foregoing is not in any way supportive of the PPP government, but it is being written for a sustainable, lasting democratic dispensation and a viable future for Pakistan. No single institution should be held hostage by another as seems to be the case presently with the judicial power exceeding its proper purview.

The writer is a JD, Attorney at Law in Houston, USA and can be reached at Tausifkamal@hotmail.com