Daily Times

The Supreme Court of Pakistan’s decision on Friday to not interfere in matters of Pakistan Steel Mills Corporation (PSMC) or Pakistan International Airlines (PIA) is a welcome step, and would contribute to setting the boundaries for the apex court to operate in. The two-judge bench of the Supreme Court based this decision on the argument that these are matters for the executive to take care of since it is well-equipped to take appropriate decisions. The court also stated that laws could be enacted by parliament for these corporations if existing laws are not sufficient for the demands of the present situation. All of this is laudable since the Supreme Court is not making use of opportunities to expand its institutional turf, and instead adhering to the letter and the spirit of the constitution.

While it is true that an empowered and an assertive judiciary is necessary for protection and growth of the democratic system, the line that courts must follow in order to not overplay its role is indeed a thin one. And in the recent past when under former Chief Justice Iftikhar Muhammad Chaudhry the judiciary took on an increasingly activist character, it is essential to engage in the debate of judicial activism and judicial restraint so that the judiciary’s place and its role in a democratic country can be better understood.

Judiciary is one of the three pillars of the state along with the executive and the legislator and its role is to uphold the rule of law. The Supreme Court of Pakistan is the guardian of the constitution, and for this it can even declare simple acts of parliament to be ultra vires (beyond the powers) if they do not conform with the constitution. However, the judiciary remains an un-elected institution, and for that very reason, it must practise restraint so that the will of the people is not undermined. For example, when scrutinising any acts passed by parliament, it should only strike down those parts that do not conform to the constitution rather than declaring the whole act to be null and void. Similarly, in its powers of interpretation, the judiciary should ensure that it interprets legislation in accordance with the intentions of its drafters. While keeping a check on the other organs of the state, the judiciary should also complement their activities and not try to expand its sphere of influence.

Moreover, increased judicial activism can be an undue interference in the affairs of other departments of government, which require specialist knowledge to take care of them. This can lead to suboptimal decisions and unnecessary complications in everyday affairs of the government. Hence, the judiciary must respect the workings of the executive and take action only when there is a point of law to be decided. This is the role of the judiciary under the constitution, and fortunately, it appears that the Supreme Court is working in this direction.