Targeting judiciary

That an orchestrated campaign has been unleashed against the judiciary these days cannot be denied. Prime Minister Shehbaz Sharif, at a political convention last week, alleged presence of “black sheep among the judges”, apparently irked by the relief Imran Khan was getting is some of his court cases. Not just that, senior PML-N leaders like Law Minister Azam Nazeer Tarrar and Rana Sanaullah, besides PTI dissident Senator Faisal Vawda, MQM-P’s Mustafa Kamal and even Sindh Governor Kamran Tessori are among those issuing statements critical of the judiciary.

The law minister, during a Senate sitting, even talked about a “growing rift” between state institutions and criticised the judiciary for “overstepping its mandate” regarding the case of missing Kashmiri poet Ahmad Farhad. Tarrar claimed that under the Constitution, the judiciary does not have the authority to summon senior military officers and government officials in such cases. He said the court’s remarks were not just “inappropriate” but they also undermined the sanctity of the parliament.

Under the cover of parliamentary privilege, several Senators assailed the conduct of judges. Vawda, an independent Senator, went so far as to move a privilege motion against a sitting Supreme Court judge. Senator Sherry Rehman, presiding over the Senate sitting, said the issue must be brought to a logical conclusion with a report from the Senate Secretariat.

In a counter-point, ANP Central President Aimal Wali Khan regretted that the parliament was being used against an institution. Senator Kamran Murtaza of JUI expressed similar views.

This venomous campaign against the judiciary is neither in consonance with the Constitution nor the parliamentary conventions, and should not have been allowed by the chair. The outburst against the judiciary is reflective of a typical mindset whereby some consider themselves as above the law. Therefore, the question that arises here is: can an individual or an institution claim immunity from being questioned? A related question is: can the conduct of judiciary be discussed in parliament?

Article 68 of the Constitution commands that no discussion shall take place in Majlis-e-Shura (Parliament) with respect to the conduct of any judge of the Supreme Court or High Court in the discharge of his duties. However, an orchestrated campaign has been launched by those who have themselves taken oath to protect the Constitution. Chief Justice Qazi Faez Isa, expressing his anguish over the contemptuous speeches, remarked that even parliament could not discuss the conduct of judges.

The basic lesson that is often disregarded or conveniently forgotten is that the rule of law is the essence of the Constitution, embedded in Articles 4 and 25, supplemented with fundamental rights and independence of judiciary. In addition, the preamble to the Constitution also focuses on the concept of rule of law and independence of judiciary. The crux of these articles is that all state’s functionaries derive authority from the Constitution, and statutes and rules framed thereunder. All are equal before law and under equal protection of law. Rule of law, and not rule of men, is the basic preposition of constitutional jurisprudence evolved so far. All institutions and individuals are under the command of the Constitution. Therefore, digression from the established principles will attract action from the superior courts.

The structure of the state has been raised on the principle of trichotomy of power, or separation of powers. Under this principle, each organ of the state is allocated separate functions, which is a key element in the proper functioning of any healthy democratic system. Under the same theory, judiciary has been obligated to act as guardian of the Constitution, interpret the Constitution, and enforce fundamental rights. Without being independent, these essential duties ordained by the Constitution cannot be performed satisfactorily. Therefore, meddling in the affairs of the judiciary in the garb of parliamentary sovereignty is tantamount to attacking fundamental rights and independence of judiciary. It is time to stand in solidarity with judges and bring to justice all those involved in the malicious attack against judiciary.

Published in The Express Tribune, June 6^th, 2024.

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