Syed Abdul Rasool Shah
Hats off to the honorable chief justice of Pakistan and his team for giving a landmark verdict that is, for sure, going to alter the political landscape of the country for good. In a historic short order, he alongside four other respected members of the jury after hearing the petition challenging the election act 2017 unanimously decreed that a person disqualified under article 62 and 63 of the
Constitution cannot be elected as head of any political party under election act, 2017. Apart, the apex court, further ruled that “all of the steps taken, orders passed, directions given, and documents issued by the erstwhile disqualified Prime minister Nawaz sharif in capacity of party head since his disqualification on 28th July 2017, last year stand as nullified.
This unprecedented ruling depicts that despite regular tirades by the duo Nawaz sharif and his daughter Maryam aimed at pressurizing the Supreme Court, our judiciary evinced remarkable fearlessness and indifference to the ongoing stricture, and exercised due diligence and judicious prudence in deciding the very important cases of the history of Pakistan. This singular audaciousness on part of judiciary suggests that a benighted time of our judiciary marked by undue judicial restraint, subservience to executive and power hungry junta is over. It has now, with renewed vigor and determination, embarked on a new journey of providing people with indispensable justice, protecting their unalienable rights and upholding the rule of law. This very notion was verbalized by honorable chief justice in a program organized by legal fraternity;” people with pure drinking water, hygienic food, protection of life and property and above all, a society free from economic and moral corruption” , remarked worthy chief justice , is his mission. In pursuance of this noble cause, he has started taking suo moto notices almost on every issue of public importance. The downtrodden section of the society, owning to his unfl-inching commitment to ensure justice, fair play and accountability, regards chief justice as deus ex machina, a ray of hope and a savior who has descended right from the heavens to redress their grievances and cure all the ills of society.
On the contrary, the opponents of this new wave of judicial activism bill it as judicial coup rather than judicial revolution. They contend that judiciary has overstepped its defined limits. It has trespassed into the domain of executive and thereby created impediments in the way of its progress and smooth functioning. They are of opinion that the apex court by taking too many suo mot notices encroaches the jurisdiction of the executive. This very narrative fostered by executive against judiciary is unjustified and biased. In fact, the executive needs introspection and set its own house in order rather than blaming judiciary of intervention and over lord. The judiciary doesn’t intervene until executive performs its duty with honesty and integrity. It only becomes active when it feels that fundamental rights of the people are infringed and not taken care of. The honorable chief justice makes no bones about that if the executive fails to deliver, the judiciary for certain, would come to fill in the void.
In wake of this emerging conflict among state institutions, a new jurisprudential debate has triggered.
Legal luminaries, politicians, academia, and intellectuals are engaged in debating who is supreme? The legislature or the judiciary. The legislators argue that as it is the legislature that legislates and the function of the court is merely to interpret that legislated law that’s why legislature is superior to that of the judiciary whereas the jurists maintain that as judiciary under the power of judicial review can override and declare the legislated laws of the legislature as ultra vires and unconstitutional; Therefore, the judiciary is more supreme than that of the legislature. But in fact, neither the parliament nor the Supreme Court is supreme but the constitution wherefrom the powers of both the organs emanate. This very idea was expressed by the honored chief justice in a gathering few days back. He said “parliament is supreme but constitution is more supreme than that of the parliament…
Now, the question arises what is the constitution? Former chief justice of U.S Supreme Court Charles Evan Hughes gives a modern answer to this question. He once in his speech remarked that “we are under constitution, but the constitution is what the judges say it is”… it simply means that constitution is subject to the interpretation of judges of the apex court. They are the true guardians of the constitution. They are under oath to preserve and protect the constitution. Therefore, the court under the power of judicial review can declare any law made by the legislature as ultra vires if it is in conflict with the constitution, which is the fundamental law of the state and embodies the will of the people.
It is true that the parliament has the power to enact the laws and amend the constitution but it is not so empowered as to alter the basic structure of the constitution. In a famous case of syed Zafar ali shah, the supreme court held that” we have stated in unambiguous terms in short order that the constitution of Pakistan is the supreme law of the land and its basic features I, e independence of judiciary, federalism and parliamentary form of the government blended with Islamic provisions cannot be altered even by the parliament. In addition, in Mehmood khan achakzai case, the court held that the parliament did not have the power to amend the basic characteristics of federalism, parliamentary democracy, and Islamic provisions as contained in the objective resolution/ preamble to the constitution of 1973, which now stands as the substantive pat of the constitution. It reflects that the parliament has the power to mend or make the law but the very power is not absolute. Mo-reover, “if the legislature,” writes Gettle,” determines the scope of its own power, and the courts have no right to set aside such of its acts as violate constitutional limitations, the constitution becomes a mere scrap of paper, of no binding power”…
Additionally, it has now become abundantly clear that the executive in league with the legislature have ganged up to defy the superior court of the country. Attempts are underway to emasculate the apex court by trimming its wings of power. The covert motive behind this mala fide move is the subordination of judiciary to the executive. Actually, our politicians want spineless, pliant and eviscerated judiciary working in accordance with their whims. With this attempt, our politicians aspire to further their vested interests. They want to transform the democratic dispensation into dynastic monarchy and thereby be unaccountable for their deeds. The conversion of PML (N) into PML (S) by selecting the Shehbaz sharif as a new party head corroborates the fact that there is no room for democracy to flourish in party politics of our country; how come a party devoid of democratic ethos within itself would ensure democracy outside in the country.
To conclude, our judiciary should stick it its guns and perpetuate the ongoing judicial activism as it is the need of the hour. Without active judiciary, the dream of developed, prosperous and peaceful Pakistan can never be realized. Our judiciary must, whether rain or shine, uphold the rule of law and dispensation of justice without paying any heed to the diatribe made by former disqualified premier and his ideologues. “Fiat justitia Ruat Coelum”, (let the justice be done if the heavens fall) and for certain, the heavens won’t fall…