This article was published in Arab News on Feb 17, 2023 at the following link

https://www.arabnews.pk/node/2253121

Most democratic countries, whether based on parliamentary or presidential systems, stand on three distinct pillars of the state with their well-defined areas of work. The legislature frames laws, scrutinizes the executive’s performance and provides a forum to express public sentiments by elected representatives. Judiciary adjudicates between individuals, groups, and governments. The Executive administers the state by enforcing the laws. In parliamentary systems like in Pakistan, the distinction between legislature and executive is blurred at the top because the Prime Minister is the Chief Executive of the country as well as the leader of the majority party in the National Assembly, and therefore a part of the two pillars of the state. 

Generally, these three organs do not interfere in the affairs of other organs and the extent of this non-interference is a measure of the maturity of a country’s democratic system. 

In Pakistan however, inter-institutional interference is such a serious issue that former Chief Justice of Pakistan (CJP) Asif Khosa had proposed a grand dialogue among the judiciary, executive, parliament, military and intelligence agencies to resolve it. Senator Raza Rabbani, as Senate Chairman, initiated such a dialogue by inviting the CJP and army chief to the Senate Committee of the whole. 

Relations between the parliament and judiciary need to be repaired. The starting point is the realization that each organ should strictly confine itself to its constitutional role. Informal observations given during case proceedings in courts are one major source of irritation. 

Ahmed Bilal Mehboob 

The most recent controversy which may be perceived as encroachment of one institution in the other’s domain, erupted a few days back when CJP Justice Umar Ata Bandial, gave a few observations while hearing a case in the Supreme Court. These observations, as reported in the media, incensed some members of the Senate so much that they debated these in the Senate and after a few hard-hitting speeches, referred the matter to a Senate Committee for follow-up action. The subject continues to be in discussion, often quite passionately, not only in the parliament but also in the media and court rooms. 

The reported remark of the CJP that ruffled most feathers was his praise for Muhammad Khan Junejo, a former Prime Minister from 1985 to 1988, who he said, was the ‘only honest Prime Minister of Pakistan.’ Senator after Senator questioned the ‘appropriateness’ of the observation and considered it insulting to the remaining 26 prime ministers since the independence of Pakistan. 

The Attorney General of Pakistan who was present during the court proceedings, had to write a letter to clarify that the CJP had not made any derogatory remarks about the Prime Ministers. 

Another observation by the CJP which irked the parliamentarians was about terming the national assembly ‘incomplete.’ It is true that about one-third of the total strength of the assembly has resigned but there is no constitutional provision which renders the assembly ‘incomplete’ and therefore incompetent to discharge its functions if a certain number of members resign. Since one expects the apex judge of the country to speak strictly according to the law and not casually, the parliamentarians were somewhat justified in feeling slighted by the comment. 

There is a rather long background of strained relations between parliamentarians and the judiciary in Pakistan. The courts have taken extreme decisions in the past to remove a number of Prime Ministers politically like Syed Yusuf Raza Gilani and Muhammad Nawaz Sharif and in the case of Zulfikar Ali Bhutto, physically too. The courts had repeatedly given legal cover to the unconstitutional dissolution of assemblies starting with the first constituent assembly of Pakistan in 1954. The dismissal of assemblies in 1958, 1977, 1988, 1990 and 1999 were all given legal sanction by the courts under the so-called ‘law of necessity.’ 

The relations between the two premier organs of the state – the parliament and judiciary – need to be repaired and improved. The starting point is the realization that each organ should strictly confine itself to the role prescribed in the constitution. The informal observations given during the proceedings of the cases in courts are one major source of irritation. These observations need to be regulated by the courts themselves in light of the judges’ code of conduct. To begin with, these observations may be restricted to the bare minimum. 

The electronic media’s coverage which sometimes assumes the form of running commentary through tickers and breaking news slides may also induce a desire for greater publicity as it was observed in some cases in the past. This is exactly the reason that live on-camera coverage of the proceedings is not allowed. 

The judiciary, through informal comments, seems to be crossing an invisible, thin line of propriety at times and public reaction to such incidents becomes more disproportionate. 

Recent observations by the courts and the subsequent reaction has reminded us once again that more caution needs to be exercised by the honorable judges and equally so, those who react to those observations.