CHIEF Justice Iftikhar Chaudhry on Saturday fired the latest salvo in the perceived escalating fight between the superior judiciary and the PPP-led federal government. The Supreme Court, according to Justice Chaudhry, can strike down any legislation that is incompatible with the fundamental rights guaranteed under the constitution. While this is a well-established principle, the timing of Justice Chaudhry’s comments is impossible to ignore: the chief justice’s dilation on the ins and outs of the constitution came in a week that the government proposed legislation to protect its constitutional office-holders from suffering the same fate as former premier Yousuf Raza Gilani suffered recently. Unfortunate as it is that the past judicial practice of justices speaking only from the bench and through their judgments has been discarded in recent years, the comments by the chief justice come very close to pre-empting the legislative process. Astonishingly, however, the chief justice did not just stop there: he indicated that the supremacy of parliament was ‘out of place in the modern era’, the constitution itself enjoying pre-eminence over the will of parliament. This is explosive, particularly given the backdrop of the judiciary-government battles. Start with the claim that the constitution, not parliament, is supreme, add the corollary that the SC is the final and unquestioned interpreter of what the constitution does or does not permit — and suddenly Pakistan is in the realm of a supreme judiciary, an unelected institution dictating the contract by which state and society interact. This would be a fundamental shift in the way Pakistan’s constitutional arrangement is imagined and it is quite extraordinary that a serving chief justice would see fit to make such a pronouncement outside a judicial forum. In the SC, the chief justice is the administrative head but his vote is equal to that wielded by any other justice in any given case. Surely, then, at the very least, this is a matter to be decided before a full court, if and when the matter comes before the court.
But returning to the issue of fundamental rights guaranteed in the constitution, why is it that the court keeps invoking fundamental rights when it comes to engaging with the government instead of concentrating on securing the fundamental rights of the people? Why not focus on the broken judicial system in which the average complainant has virtually no hope of ever getting justice, and none of getting it on time? Why not focus on the abysmally low rate of successful prosecution that allows criminals to walk free? Must the court be so obviously selective?