IN an unprecedented move, the ruling coalition on Monday decided to boycott the proceedings of the apex court expressing “lack of confidence” in the judges hearing the case on the validity of the election of the Punjab chief minister. The decision came after the Supreme Court refused to form a full court for the hearing.

It may not be for the first time that the credibility of the third pillar of state is being questioned, but a lot more is at stake now as the institution is caught in the midst of a political power game. With the two other institutions of the state — the executive and the legislature — in a state of paralysis, the latest controversy over the role of the judiciary marks an impending systemic collapse. Predictably, the Supreme Court has struck down the election of Hamza Sharif as illegal and declared Pervaiz Elahi Punjab chief minister. The ruling has come as a blow to the ruling coalition. But the crisis is far from over.

With the worsening political crisis, the top court is increasingly becoming the venue of ongoing political battles. The warring sides seek judicial intercession in the disputes that should have been dealt with in parliament. In a highly charged political atmosphere, arbitration on sensitive political and constitutional matters to the satisfaction of both sides is extremely difficult.

Not surprisingly, recent court rulings have led to more controversy. Judicial activism too has added to the problem. Overstretching the role of the judiciary that often encroaches on the domain of the executive and the legislature has created a dangerous imbalance. In certain cases, the perceived attempt to rewrite the Constitution rather than strictly sticking to the interpretation of the law has affected the credibility of the highest court.

Read more: Rewriting defection

It is important to alleviate concerns arising about the impartiality of the apex judiciary.

A case in point is the recent judgement on Article 63-A of the Constitution relating to the defection clause. Most legal experts argue that the ruling invalidating the vote of defecting members goes beyond the interpretation of the provision of the law and is, in fact, an attempt to rewrite the Constitution. The contentious ruling has been the main cause of the controversy over the election of the Punjab chief minister. Some other seemingly contradictory rulings too have complicated the matter.

In this situation, the demand for the constitution of a full court to review the ruling on the defection clause was not misplaced. Some retired Supreme Court judges had reportedly endorsed the full court demand too. According to media reports, retired justice Maqbool Baqar warned against attempts to rewrite the Constitution.

It is a worrisome impression that the same bench is being assigned to hear sensitive political and constitutional matters, while other senior judges are bypassed, raising questions about the credibility of the judgements. In fact, such criticism has come from within the institution as well.

In his farewell speech in April this year, justice Maqbool Baqar, who was reputed to be one of the most independent and fair-minded judges, said: “Exclusion of certain judges from the hearing of sensitive cases on account of their independent and impartial views has an adverse effect on the impartiality of judges while also tarnishing the public’s perception about the independence and integrity of the judiciary.”

Justice Baqar was not the only judge to have expressed his reservations on the composition of the bench on constitutional matters ignoring senior judges. In a letter to the chief justice in March, that was also reported in the national media, Qazi Faez Isa, the senior puisne judge of the Supreme Court, had raised questions over the composition of a larger bench to hear the presidential reference that concerned the interpretation and scope of Article 63-A. In a letter to the chief justice, he was reported to have said that the senior-most judge was not being consulted in the constitution of the bench to hear the cases. He pointed out that the judges who were fourth, eighth and 13th on the seniority list comprised the bench.

He said it was troubling because there was a possibility that it might lead to misgivings that were avoidable. He had written in his letter to the chief justice: “After all the adage — justice is not only done but is also seen to be done — has been oft-repeated by the Supreme Court.”

It was not the first time that Justice Isa, one of the most upright and outspoken judges, expressed his critical views on judicial procedures. Some of his strong rulings caused displeasure in the establishment and perhaps that was the reason why the Imran Khan government filed a reference against him.

But the attempt to remove the judge failed as the bar and the bench stood by him. His criticism of the procedure of the formation of bench on critical constitutional issues has exposed the fault lines in the functioning of the superior judiciary. There is a need to address these concerns in order to restore the credibility of the institution.

It is important to alleviate concerns arising about the impartiality of the apex judiciary in order to strengthen the court’s authority. The judicial activism exercised by former chief justices Iftikhar Chaudhry and Saqib Nisar has done huge damage to the credibility of the judiciary.

Some of their populist judicial actions grossly encroached on the spheres of the executive and legislature, hampering the democratic process in the country. Reckless judicial intervention crippled the executive, making it harder for the elected governments to deliver. It also widened the imbalance in the distribution of power between the pillars of state. It is imperative that power and discretion be exercised reasonably and fairly to allow the system to work smoothly.

These are indeed testing times for the judiciary as for the other state institutions, especially with the worsening political polarisation in the country. The judiciary must stand up to the pressure being built by vested political interests. Any perception of succumbing to pressure is extremely damaging for the rule of law and democratic process in the country. It is also imperative for the political leadership not to drag the judiciary into politics. They must try to resolve political issues through elected forums rather than looking towards the apex court for the solution.

The writer is an author and journalist.
zhussain100@yahoo.com
Twitter: @hidhussain

Published in Dawn, July 27th, 2022