Courting the courts | Dawn

This article was published in Dawn on March 26, 2022 and is available at the following link

MODERN democratic states generally operate through three distinct branches ie the legislature, the judiciary and the executive, with distinct areas of work. In some democratic states, especially the ones practising the presidential form of government, such as the US, the separation of these three branches is strictly observed. In the parliamentary form of government, there is some overlap between the legislature and the executive because the prime minister and the cabinet ministers are elected members of parliament and, therefore, belong to both the legislature and the executive. In some other parliamentary democracies, such as in the UK, the judicial functions of parliament and the judiciary also overlap.

In Pakistan, as a parliamentary democracy, there is also an overlap of the executive and legislative branches, but the judiciary is a strictly independent branch — a status which the judiciary usually tries to guard jealously. However, there are instances when the judiciary is perceived to be infringing on the turf of the other two branches and such independent institutions as the Election Commission of Pakistan. This lingering perception of encroachment by one branch, including the judiciary, was one reason why a former chief justice of Pakistan, Asif Saeed Khosa, had proposed a summit-level dialogue among the three branches and some other institutions in 2019. But the proposal was largely ignored at that time.

Evolving consensus in parliament is better than always approaching the judiciary.

Interestingly, the perceived overstepping by the judiciary beyond its rightful boundary has not always happened on the judiciary’s initiative; many a time, political and legislative actors have dragged the courts into affairs which, in fact, belong to other institutions such as parliament. As political polarisation intensifies, with even the survival of the government appearing uncertain, this trend of involving the judiciary in political disputes and legislative entanglements seems to be gaining momentum.

In the recent past, the mode of election for the Senate was one such issue. Although the Constitution very clearly stipulates that all elections, except those of the prime minister and chief ministers, must be held through secret ballot, and Senate elections have always been conducted through secret ballot since the Upper House was constituted after the passage of the 1973 Constitution, the government’s legal team insisted on an open ballot system in the 2021 election — without amending the Constitution. The PTI leadership was apprehensive that some of the PTI legislators might not vote for the party candidates if the Senate election was conducted under the secret ballot system. They believed that an open ballot election would deter the rebels from exercising their independence.

Although the law does not bind legislators to necessarily vote for the party candidates, and there is no penalty in the Constitution and the laws for defying a party decision, the PTI advocated de-seating such legislators. A presidential reference was filed before the Supreme Court to seek the court’s advice on whether the Constitution allowed an open ballot. Some honourable judges observed during the proceedings whether the question was really a point of law and would it not be more appropriate to take up the question in parliament.

The government, indeed, had the option to introduce a constitutional amendment in parliament, convince other political parties and develop a consensus to pass the amendment but this obviously needed a lot of work and smart political management. A shortcut was therefore adopted to seek the apex court’s advice and avoid the lengthy and difficult democratic process of negotiating with opponents to reach an agreement.

This approach, however, not only adds to the workload of the courts, it also tends to involve courts in political polarisation and, above all, it stunts the democratic process, which encourages, rather requires, that legislators with various political affiliations sit across the table from one another, negotiate and accommodate each other’s point of view and, in the end, produce a document or decision which reflects a broad societal consensus.

Evolving cross-party consensus on thorny issues is not a utopian idea; it has happened in Pakistan many times. Not long ago, all political parties represented in the two Houses of parliament agreed on the 18th Amendment which revised almost a third of the Constitution. The quantum of provincial autonomy had always been an emotive and divisive subject in Pakistan and had even led to the break-up of the country, but all parties agreed on greater devolution of power to the provinces under the 18th Amendment in 2010. Yes, it took about a year of serious deliberations in the parliamentary committee, but consensus was eventually achieved.

Similarly, electoral reforms which resulted in a consensus on Elections Act, 2017, also enjoyed cross-party support including that of PTI in parliament. It proved once again that a political and democratic mindset to patiently hear diverse viewpoints is the basic requirement to make the democratic process work.

Last week, the government of Pakistan filed another presidential reference before the Supreme Court to seek clarification on certain aspects of Article 63A of the Constitution, which deals with the defection of legislators and its consequences. The proceedings on the reference are currently in progress and some of the honourable judges have again asked why this matter could not be dealt with in parliament. Since this reference has been filed in the backdrop of moving the vote of no-confidence against the prime minister and the possibility of some PTI legislators voting against him, it is predominantly a political question rather than a constitutional or legal issue.

If democracy has to grow roots in this country, our politicians should learn to sit around a table and negotiate. Making compromises and accommodating each other’s point of view is a positive trait and should not be characterised as a sell-out. There are a number of issues such as electoral reforms, a more comprehensive constitutional provision for local governments and reforming accountability mechanisms that require cross-party consensus. The government should shun the habit of approaching the courts and promulgating ordinances for the resolution of these and similar issues, and instead, develop the culture of negotiation.

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