Feeling hurt as the present government is by some of the recent takes of the Supreme Court, it seems to have decided to fight for its cause through the media.
It was the Prime Minister’s SAPM, Irfan Qadir, who launched his salvo against Chief Justice Umar Ata Bandial, of course without naming him, by insisting that parliament is the state and the output of the apex court should be in line with its legislative work. ‘’We want the country to progress, and all institutions should work within their limits’’, he argued, adding a single person should not dominate any institution.
To him, parliament and the government are the state, not the judiciary, hence all citizens are subservient to the state. Going further, Irfan Qadir said the state is showing patience, but it isn’t weak at all.
It was a well-played game, but in excessive misuse of the political science. It was in violation of the inescapable reality of the democratic system which holds the Separation of Powers as its linchpin.
As the people in medieval Europe started feeling the heat of monolithic governance by the monarch, a debate emerged as to how much of state power the king should keep and surrender the rest to the people.
That led to the division of the state power between the king and the people, with a proviso that the quality and degree of that division should be closely watched by the judiciary.
There was extensive debate and literature on this division and separation of power, giving rise to birth of elected government and its actualization was to be supervised by the judiciary.
Political scientist Montesquieu summed up the debate in his Spirit of Laws by saying if England was better governed than France and others it was because of separation of the legislative, executive and judicial powers – which led to the French constitution and Bill of Rights of America. That had put to permanent demise the idea of mixed state which had governed this debate as old as Plato’s Laws.
Constitutionally, Pakistan is a republic, “Wherein the independence of judiciary shall be fully secured”. Nowhere in the constitution is there any hint that judiciary is subservient to the dictates of the executive or legislature.
The parliament and other elected assemblies make laws, but whether these laws are in line with the constitution, that is to be decided by the judiciary.
Irfan Qadir may like to rethink his mindset that the State is unhappy with the incumbent judiciary. In fact not the state but the legislature is unhappy with it.
Sikandar Hayat (Islamabad)
Copyright Business Recorder, 2023
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