Volume 22 Issue 2, February 2018
 
 

 

As per theory of Separation of Powers propounded by Montesquieu, the famous French philosopher, the salient feature of a Democracy is Trichotomy of Powers i.e three institutions, the Parliament, Executive and Judiciary are independent and separate and must not encroach upon the powers of each other. The functions of the three institutions are clearly demarcated in any Constitution of a Democracy. The Parliament makes laws, the Executive governs while the Judiciary enforces the law and decides the disputes between the citizens as well as between the provinces in a federation and between a citizen and the government authorities. The Judiciary also has the power to interpret the Constitution and other laws.

Essentially therefore, the function of the Judiciary is to decide the disputes between various parties. If the Judiciary in a State is independent and functions properly and efficiently, a just system is evolved and thus half the problems in a State are automatically resolved. In a functioning democracy it is rare that the Judiciary is called upon to arbiter between the Executive and the Parliament or to interfere with the political process in the country, leading to formation of government.

Unfortunately, in Pakistan the Executive has always from the very beginning, exceeded its authority and has sought to interfere with the Parliament and the political process with a view to extending its tenure. The first such incident occurred in 1954 when the Governor General, Ghulam Mohammad dissolved the National Assembly which resulted in the Speaker of the Assembly taking the matter to court. Though the court upheld the high-handed decision of the Governor General but it set the trend for the Judiciary to be involved in the political process. Later, whenever an autocrat tried to interfere with the Parliament, which occurred during successive martial laws, the Judiciary except for once, when Nawaz Sharif's government was restored in 1993, invariably came up in support of the autocrat. Thus mercifully, though by default, the Judiciary's intervention in the political process remained limited to only the occasions when Martial law was actually imposed or a Martial law like situation prevailed.

However, the scenario changed when Gen. Musharraf imposed his second Emergency in 2007. A so-called lawyer's revolution followed which gave unprecedented clout and power to the Judiciary. Thus began active intervention by the Judiciary in the political process, sometimes upon the Judiciary's own initiative and at other times due to the politicians' machinations to settle scores with their opponents in court rather than in the Parliament. This trend became pronounced as time went by, leading eventually to the Prime Minister himself being disqualified by the Judiciary recently at the behest of another political party in opposition.

The question is whether the Judiciary should intervene and thus interfere with the political process. It is a fact that due to successive weak, corrupt, inefficient and ineffective governments, the Executive in our country has lost its credibility altogether. Consequently no one really takes the Executive seriously anymore and any action taken by it, even if ostensibly for the benefit of the common man, it is looked upon with suspicion, while the Parliament has become totally insipid. Since at the same time, the Judiciary has grown in stature, it is true that the Executive now literally waits upon the Judiciary and reacts only when it speaks. In situations like this, earlier the Army stepped in to restore the country to normalcy but since that is no longer possible after the so-called lawyers’ revolution and also because the world does not react favourably to such takeover by armies, one now has no option but to rely on the Judiciary to restore the country to normalcy.

While this argument might sound logical, there is a price to pay for such a course to follow. Firstly, it is that, like the Army earlier, the Judiciary too is likely to become politicized and thus lose its independence and impariality. Secondly, the Judiciary will then tend to ignore its primary function, that is to resolve disputes between individuals in an efficient and just manner because its members will find interfering with the political process much more interesting and ego-serving, particularly due to media publicity, needless to say to the detriment of our polity. This is indeed a heavy price to pay. In the final analysis, therefore, in the larger interest of the nation, the Judiciary ought to confine itself to its primary task of deciding disputes and should not intervene in the political process.


The writer is a former chief justice of the Sindh High Court.
 
 

 
 
 
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