By Asif Mahmood
The legislature and the judiciary are on bad terms only to plunge the country to new abyss. One wonders if there could be a more chivalric way to celebrate the Golden Jubilee of the Constitution.
Legislatures, in an unprecedented act of defiance, refuse to abide by the Court verdict and the Court, throwing down the gauntlet to legislature, strikes down enactment of the Parliament. Worst still is that bile is being spewed in the name of democracy and constitutionalism? No one has weighed what the ultimate outcome will be. Schism is simmering. Gloves are off and there is a downright failure in keeping a level head. Never before has it been so disconcerting. Nobody bothers that things are being reduced to ridiculous.75 years on, we are still not done. We are twisting ourselves into knots.
Among many qualms about our constitutional acumen has been judicial activism. It ranges a wide spectrum from doctrine of necessity to striking down the legislation of the parliament; from authorizing dictators to amend the constitution to rewriting it on the pretext of interpretation; from Samosas to Chapli kabab; from Orange Train to Steel Mills and from Atiqa Odho to Reko Diq.
This judicial activism has been critiqued on multiple grounds e.g., that it is one man show, that its procedure is flawed, that it eviscerates the efficacy of legislative organs, that it rewrites the constitution on the pretext of interpretation, that it embowels the doctrine of trichotomy of power, that it fossilizes the administrative system, that the judiciary becomes executive, that an appellate court starts functioning as a trial court and last but not the least, that its economic cost is too high. Under Article 184(3) the power was actually given to the Supreme Court but it has been and being exercised only by the Chief Justice. Article 176 defines Supreme Court as “Chief Justice and other judges”.
The power doesn’t rest with the Chief Justice; it rests with the Supreme Court. So how can it be an exclusive domain of Chief Justice? Same point has been discussed in a recent judgment of two member bench of the Supreme Court that “court cannot be dependent on the solitary decision of one man, the Chief Justice, but must be regulated through a rule-based system….. The power of doing a one-man show is not only anachronistic, outdated and obsolete but also is antithetical to good governance and incompatible to modern democratic norms. One-man show leads to the concentration of power in the hands of one individual, making the system more susceptible to the abuse of power”.
