ISLAMABAD: Against the backdrop of Supreme Court’s verdict that barred former prime minister Nawaz Sharif from being appointed head of a political party, a senior member of the Pakistan Bar Council (PBC) has emphasised the need for the council to highlight the risks of what he called the “judicialisation of Pakistani politics”.

In a letter to PBC’s vice-chairman, Kamran Murtaza, as well as other members of the 23-member supervisory body of lawyers, Advocate Raheel Kamran Sheikh underlined the need for adopting a resolution after discussing threadbare the nature and scope of “judicialisation” of politics.

“I think it is important for us to understand and discuss in the next meeting of the council the nature and scope of the phenomenon of judicialisation of politics in Pakistan and risks associated with it,” Advocate Sheikh said in his letter.

He said the Feb 21 short order of the Supreme Court, which accepted petitions challenging the Election Act 2017, had served to intensify the debate in the country on “judicialisation” of politics — a phenomenon involving overdependence on courts and judicial means for addressing core moral predicaments, public policy questions and political controversies.

Mr Sheikh’s idea was supported by Mr Murtaza, as he shared his opinion and said it was time for all the stakeholders to exercise restraint and show political maturity. “The PML-N and its political opponents should not always be on the lookout for opportunities... for washing dirty linen in the open,” he said.

He would definitely convene a meeting of the PBC after the Senate elections on March 3, said Mr Murtaza, explaining that he was currently in Quetta and canvassing for a seat in the upper house of parliament.

“It is not proper for the political parties to approach the superior judiciary all the time with the aim of embarrassing their political opponents,” he said. The tendency to do so would not only overburden the judiciary but also run the risk of politicising the judiciary.

“It is in the largest interest of the country that restraint is exercised so that any attempt to disrupt and derail democracy in the country may be thwarted with full force,” he said.

Advocate Sheikh, on the other hand, recalled how some PBC members were urging the apex court since emergence of the Panama Papers to assume jurisdiction under Article 184(3) of the Constitution, while others were expressing apprehensions that entertaining too many constitutional petitions would only politicise the judicial process regardless of whichever side wins.

The matter was included in the agenda of the last two meetings of the council for consideration; however the same was deferred due to paucity of time, contended Mr Sheikh.

In his opinion, “judicialisation” of politics was not a phenomenon that was exclusive to Pakistan. And even in it was not a new phenomenon. For instance, in the 1990s the Supreme Court was called upon to determine the political future of regimes of former prime ministers Benazir Bhutto and Nawaz Sharif and legitimise the 1999 military coup d’état.

Advocate Sheikh contended that the Constitution was a political document and the bodies constituted under it were also political in nature. The courts had the ultimate authority to interpret the Constitution and the direct or indirect political role of the military in Pakistan.

For example, he said, the judges who took oath under any PCO were not forgiven even after their deaths. In contrast, the politicians who served a military dictator were welcome to take oath as ministers in the subsequent civilian governments. This is why the judges usually remain sensitive towards exercise of judicial authority.

As the recent history of comparative constitutional politics showed, “judicialisation” of politics had triggered significant political backlash aimed at clipping the wings of overactive courts, said Mr Sheikh. That was why the PBC should discuss the issue and come up with a strong stance on it, he added.

Published in Dawn, February 25th, 2018