A case of judicial overreach

Democracy & constitutionalism will nurture only if all state institutions remain confine to their respective functions

A bare perusal of the order made by the Honourable Supreme Court reveals that it may be a case of overreaching into the domain of the executive or even the political. In my humble opinion, the judicial pronouncement appears to have transcended the ambit of judicial review prescribed by the Constitution. One wonders as if it was not enough for our courts to intrude into the executive affairs by fixing prices of tomatoes and potatoes that our honourable judges have now given yet another connotation to the term ‘judicial activism’.

High Courts in Pakistan derive their jurisdiction to judicially review administrative actions from Article 199 of the constitution. This provision does not bestow unbridled authority into the hands of the judges to undo any wrong they may see rampant in the country. Like all powers vested by the Constitution, this authority is also circumscribed by various limitations. One such caveat is that a writ can only be issued against the Federal or a provincial government, public or semi-public authority or any person exercising the powers in connection with the affairs of the state. Political parties like the PTI and the PAT certainly do not fall in any of these categories prescribed by the Constitution against which a writ could lawfully be issued.

Similarly, one also fails to comprehend as to how a court of law can adjudicate upon the constitutionality of a squarely political demand made by a registered political party. The electorate is and should, at all times, be at liberty to make any imploration from the government it installs.

The demands of the PAT and the PTI, though undoubtedly preposterous and naive, are nevertheless purely political in nature. The court, while passing the order in question was neither confronted with any question of law that required determination nor was there a legal dispute, requiring adjudication. There was thus no reason for the honourable judges to get themselves entangled in the controversy between the government and the protesting political parties.

Throughout the world, politics is practised either in parliament or on the streets. Political parties never lose a chance to demand the resignation of a prime minister even in cases where he or she may not be personally delinquent. It is, however, incumbent upon the judiciary to abstain from getting itself entwined in these quagmires and let the executive to handle such issues administratively using its own political wisdom.

The honourable judges also erred in that their Lordships failed to appreciate that freedom of assembly and expression are the fundamental rights of every citizen, which are enshrined in and guaranteed by the Constitution. Of course, these rights are qualified and the courts at all times can restrain protests, which tend to violate the law or infringe upon fundamental rights of other citizens. However, the judiciary at the same time cannot be armed with licence to declare contemplated protests unconstitutional merely because the courts find the demands of the protesters politically incorrect.

In Pakistan, like most democratic countries, the doctrine of separation of powers is finely woven into the very fabric of the Constitution. Democracy and constitutionalism will nurture in our country only if all institutions of state remain confined to their respective enunciated functions. Matters of policy and governance should better be left to the executive and politics to politicians.

Published in The Express Tribune, August 25^th, 2014.

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