LAHORE: Lamenting overstepping of their constitutional roles by different state institutions resulting in political and economic crises, the panelists at a session of Asma Jahangir Conference’s concluding day, titled ‘Separation of Powers: the Parliament, the Executive and the Judiciary’ stressed the need for creating an institutional balance and impartiality on part of the members of these institutions.

Former president of the Sindh High Court Bar Association, Salahudding Ahmed, opened the debate by asking what are the limits of the power of judicial review of laws, which the judiciaries are exercising world over, and while doing so rewriting the constitution, in many cases.

He also questioned subservience of the parliament to the executive and asked whether it was because of the undemocratic structures of the political parties.

Senator and former president of the Supreme Court Bar Association Syed Ali Zafar regretted that the concept of separation of powers had been messed up in the country because of so many institutional infringements.

He said the forefathers, who were inspired by US model had given unprecedented powers to the judiciary, including the judicial review, power to influence fundamental rights, power of suo moto and the foremost the power to interpret the laws and the constitution. Similarly, the executive and the legislature were also given certain roles.

However, he regretted the whole concept was messed up, mainly because of, what he called, “loss of reputation” by the institutions.

“When an institution loses its reputation in the public, it gives way to the others to encroach upon its powers,” Mr Zafar said. He gave a short review of the country’s parliamentary history, saying the prolonged delay in the making of the first constitution (1956) was because of the ‘conflict of interests’ because those assigned the task knew that their tenure lasted till the finishing of the job.

He said later the reputation of the parliament was tarnished because of horse trading and a game of musical chair, giving way to martial laws. He said after Gen Musharraf’s ouster and the lawyers movement, we witnessed the rise of the media that popularised judges whose statements became headlines of the newspapers.

Commenting on Justice Qazi Faez Isa’s remarks that the individuals and not the institutions should be criticised for their flaws, Zafar said he would say that not the judges, but their decisions, if wrong, should be criticised. While reviewing laws, he said, the judiciary should consider the purpose of the law first and then interpret it.

Pakistan People’s Party leader Nafisa Shah said from 1947 to 1970 the country lacked a constitutional structure and it was provided by his party in the form of 1973 constitution. She, however, deplored that despite having a comprehensive constitution, the country witnessed so many abrogations of it.

Lamenting lack of respect for the civil supremacy and concentration of power in one institution -- the establishment, she blamed the judiciary for “rationalising and normalising” extra constitutional steps. She said, however, a “cocktail democracy” had been surviving because of the Charter of Democracy and the 18th constitutional amendment since.

Former chairman of Senate Raza Rabbani lamented that country became a ‘garrison state’ and added that the establishment had been experimenting with it. He said the country was in a transition from “monopoly of civil-military bureaucracy to dominance”.

“During this transition everyone wants to get the biggest share in power,” he added. She said because of infringement of its powers the parliament, that was once in derogation called a mere debating club, had been rendered totally redundant. He stressed the need for another charter of democracy, calling it CoD-II and an institutional dialogue.

Former premier Shahid Khaqan Abbassi said the whole debate on separation of power would remain just an academic discussion unless the core issue of institutional infringement is not settled. He said though all the three institutions were responsible for the present crisis, but the judiciary, being arbitrator, had the biggest responsibility.

He regretted that the judiciary failed to uphold the sanctity of the ballot. He reiterated his stance to abolish the National Accountability Bureau (NAB), saying it paralysed the executive, and asked,”If Supreme Court is unaware of what NAB has done. He said if a judicial verdict undermined the parliament, it undermined the people of Pakistan.

Published in Dawn, October 24th, 2022