This article was published in Dawn on February 03, 2019 and is available at the following link
THE realisation has been growing over the past few years that Pakistan needs some kind of dialogue among state institutions at the highest level. The thought behind this is that various organs and institutions of the state seem to be increasingly encroaching on each other’s space. The pitch and frequency of complaints and sometime protests against such perceived or real encroachments have been on the rise lately.
After an extended period of hyper activism and repeated encroachment of other state organs’ domains by the Supreme Court during the term of former chief justice Iftikhar Chaudhry, the four succeeding top judges opted not to follow this approach. But judicial activism returned with a vengeance during the second half of Saqib Nisar’s term as chief justice.
Take a look: Politicians welcome CJP’s call for dialogue
It is not only the judiciary which is seen to be encroaching on the turf of other organs. Political interference in such executive functions as postings, transfers and promotions is common knowledge. Military dictation, perceived or real, in certain policy areas has also been much talked about almost since Independence. One, therefore, may differ about the extent and nature of the inter-institutional encroachment but the problem is real and needs to be dealt with.
One may argue that there is good reason for not formally inducting the judiciary into such dialogues.
Senator Raza Rabbani has been one of the most outspoken critics of such interference and he formally proposed a ‘grand dialogue’ among parliament, the judiciary, the executive and especially the military. During his term as Senate chairman, history was made when a sitting chief justice, Anwar Zaheer Jamali, addressed the Senate Committee of the Whole in November 2015. Army chief Gen Qamar Bajwa also briefed the committee in December 2017. The briefing was followed by a question-answer session described as “very candid, very free, very frank, very objective” by ISPR. Later, the Senate chairman also met chief justice Nisar in January 2018 to discuss parliamentarians’ concerns about the perceived lack of powers of the parliamentary committee on the appointment of judges whose powers were clipped at the apex court’s direction during Iftikhar Chaudhry’s term.
In addition to these dialogues occurring as special events, the National Security Council (NSC) was created in 2013 as a premium forum for civil-military dialogue, which included top military commanders and key federal ministers under the prime minister’s chairmanship. Despite these channels and dialogue forums, the idea of a grand dialogue keeps coming up. The most recent and perhaps the strongest voice for such a dialogue was raised by Chief Justice Asif Saeed Khosa just a day before he assumed the office of top judge. The extraordinary proposal surprised many because it had come from the then chief justice-designate in the form of a well-considered dialogue blueprint.
In his speech at the full court reference for chief justice Nisar, Justice Khosa also proposed that the top leadership of three state organs — parliament, the judiciary and the executive, along with the top leadership of the military and intelligence agencies should participate in the dialogue. He candidly identified trust deficit amongst different state organs, encroachment of a state organ’s domain by the other and the need to discuss issues jeopardising good governance as key reasons for the dialogue.
The most distinguishing feature of Justice Khosa’s proposal is the ambitious agenda of the proposed dialogue which comprises stocktaking with reference to mistakes made by state organs; solutions to encroachment of an institution’s domain by another; pendency of court cases; restricting the legislature to its domain while denying development funds to legislators; political influences in posting, transfer and promotion of public servants; operational autonomy of executive authorities; the role of armed forces and intelligence agencies in the governance paradigm; civilian supremacy alongside civilian accountability; missing persons issue; and complex subjects such as a ‘charter of governance’.
There is no doubt the problems identified exist in Pakistan and that there is a need to curb the tendencies of encroachment of others’ domain. Chief Justice Khosa should therefore be commended for his eloquence, intellectual honesty and courage for initiating the proposal. However, two key questions need to be addressed. First, whether the existing channels and bodies created for dialogue such as the NSC can be made more effective without creating a new mechanism for inter-institutional dialogue. The second crucial question is whether it will be appropriate for the judiciary to be a formal part of the dialogue.
It seems that multiple channels of inter-institutional communication are already available and there are formal forums such as the NSC where the parliamentary-cum-executive leadership periodically exchanges views with the top military leadership. There is, however, room for improving the effectiveness of such forums as the NSC by, for example, meeting at least once a month.
No dialogue forum, however, exists where the judiciary is formally represented alongside the representatives of parliament and the executive. One may argue that there is good reason for not formally inducting the judiciary into such dialogues because involvement in decisions taken at the dialogue may make the judiciary a party to these decisions and this may compromise the independence and neutrality of the judiciary when it is later approached for adjudication. In addition, there is hardly any international example where the judiciary is part of such a wide-ranging dialogue.
Some puritan legal experts feel that the roles and jurisdictions of all state organs have already been defined in the Constitution with the Supreme Court having the role of interpreting the document, and that, therefore, there is no room or need for creating yet another mechanism.
The need for effective inter-institutional dialogue to address such critical issues as the encroachment of domains is well established. There is, however, a need to explore the ways to making existing channels and forums of dialogue more effective before initiating a new mechanism. There is also a need for informed exchanges of views on the formal participation of the judiciary in such a dialogue.