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Judicial overreach

February 24, 2018

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WHILE ducking for cover from the barrage being aimed at the political system by the judiciary, one yearns for the good old days when courts avoided passing judgement on cases of an overtly political nature.

Now, it may appear to some that the role of the Supreme Court as the ultimate appellate authority has become secondary to the more ambitious job of setting the whole country right. Never mind that their lordships may not have the expertise or, indeed, the time, to supervise their well-intentioned reforms.

And although the constitutional mandate to take on the executive’s role may not be available, the suo motu provision to crack the whip over politicians and bureaucrats is often used. In a country where poor governance is the norm, this is not always a bad thing. However, when the judiciary strikes down laws passed by parliament, many see it as overreach.

When the Panamagate scandal was first referred to the SC, I had predicted that it would refuse to hear it. My reasoning was that any judgement would have a winner and a loser: in this case, either Imran Khan or Nawaz Sharif. Neither is known for his grace in defeat.

Had the verdict disqualified Imran Khan, I can’t imagine him bowing his head in humility and thanking their lordships for their sagacity. He would have been out there, breathing fire and fury, and threatening yet another lockdown of Islamabad. Now, of course, being the beneficiary of the verdict, he can afford to praise the SC, and denounce Nawaz Sharif for daring to criticise the controversial judgement that has disqualified him.

But beyond disqualifying Nawaz Sharif, the SC is seen to have extended its overreach to striking down an act of parliament that permitted a disqualified member of the house to lead a political party. This is a new phase in judicial activism that has already seen judges assume vast executive powers.

Can the three pillars of the state coexist in harmony?

Regular readers of this column will know that I hold no brief for Nawaz Sharif; in fact, I have been highly critical of his leadership over the years. But I have supported democracy consistently, and when there is a clash of institutions — as there is now — our shaky system is threatened.

At the heart of this ongoing confrontation is the rivalry between Imran Khan and Nawaz Sharif. The former is hungry for power, but even he can see that defeating the PML-N in Punjab is proving harder than he had anticipated. He is thus driven to extra-political means to win the top prize. In the view of many, this includes drawing the military and the judiciary into the fray.

Nawaz Sharif, on the other hand, has seen his popularity rise by playing the victim card. His public meetings have been well-attended, while his rivals have struggled to fill the chairs at theirs. Rather than crumbling before a series of judicial blows suffered by their leader, his base has rallied to him.

Unfortunately, by agreeing to hear the Panamagate case, the SC unleashed a series of unintended consequences. By now some are beginning to question if the SC was indeed a neutral arbiter in the recent series of controversial judgements. But this was inevitable: in any high-stakes legal battle of a profoundly political nature, the verdict is bound to change the status quo for better or for worse.

The new political scenario before us is of the ruling party nursing a powerful sense of grievance against the judiciary. Chief Justice Saqib Nisar has pronounced that while parliament is supreme, the Constitution is on an even higher pedestal. But in reality, the Constitution was drafted and approved by parliament. Sceptics assert this was not conventional wisdom when taking an oath on Musharraf’s PCO.

As things stand, the probability of the PML-N forming the next government is pretty high. While Imran Khan’s series of own goals in his personal and public life have contributed to his party’s current low ebb, the reality is that Nawaz Sharif remains a very popular leader in Punjab.

But after Nawaz having perceived that he was dubbed a mafia don, can their lordships tolerate him for another five years? As it is, Nawaz Sharif has accused the judiciary of having paralysed the executive, and of having struck down a law passed by a sovereign parliament. Can the executive, judiciary and parliament — the three pillars of the state — now coexist in harmony?

After decades of being blamed for granting legitimacy to military dictators, and sending an elected prime minister to the gallows, the SC obviously wants to move on and put these dark blemishes behind it. But the best way to do this is to improve the working of our courts at every level, and not by seeking the limelight offered by high-profile political cases.

irfan.husain @gmail.com

Published in Dawn, February 24th, 2018

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