Judicial review!
If disagreement among the honourable judges was any criterion, the dissolution of the five-member larger bench was very much on the cards. It turned into fait accompli as Justice Aminuddin Khan recused himself yesterday over simmering difference of opinion on the CJP’s right to exercise his discretionary suo motu powers. Thus, the court seized with a fundamental issue of deciding over the fate of election to two provincial assemblies is back to square one, and it will have to dig its heels again if the petition questioning ECP’s defiance is rescheduled for hearing. A day earlier, Justice Mandokhel’s comments and the 28-page note of dissent had sealed the fate, and it was evident that a long and lengthy trial is round the corner as the ruling coalition was adamant that it will not hold polls within the constitutionally mandated 90 days, and the ECP is playing flute to the lacunas of law.
A lot of political engineering went into play as the parliament passed the bill to clip the CJP’s privileges to constitute benches, and take suo motu action under Article 184(3). The new legislation has literally scrapped it down, perhaps bringing to an end judicial activism for all times to come. This was an unwarranted development at a time of acute political instability, and when institutions are at loggerheads over exercising their constitutional duties. The point is that the apex court’s right and discretion to interpret the constitution, in case of a legal tangle, has been undermined by the new legislation. As things stand, elections to Punjab and K-P legislatures hang in the balance, and the provisions of the Constitution are in limbo.
The need of the hour is to scale down the volatility of political activism, and see reason in the spirit of the constitution. This is perhaps what the CJP meant as he sought input from the Interior and Defence ministers over their contribution to holding the polls, and went on to grill the ECP over the stalemate and inordinate delay. Let the top court come up with its judicial review, and the organs of the state bow before it.
Published in The Express Tribune, March 31st, 2023.
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