- By: Mohsin Mumtaz
History dictates that the Republicans who work upon the principle of separation of powers have been successful on domestic grounds and influential in global politics. These nations employ a firm belief in the idea that the state’s pillars must ensure non-interference in each other’s jurisdiction. The mighty America, the superpower of the contemporary world, is important in this respect. Ranging from the pivotal role of Congressmen, through the sublime nature of judicial review, to the decisive presence of the executive, every state institution is contingent upon Montesquieu’s theory of separation of powers. This wisely acquired demarcation of powers contributes to America’s growing political and economic stability, and endeavours its unflinching global dominance.
In contradiction, Pakistan’s political framework which is apparently fascinated by both British and US political systems, vows to fulfil the prerequisites of institutional supremacy merely in theory. In concrete reality, the state runs counter to the fundamental principles of mutual dependence and separation of powers. The country’s tangled history has been marred with political ingress in the jurisdiction of the state pillars. This claim of political engineering of the state institutions is no longer theoretical after the 26th Constitutional Amendment. The political think tanks had rightly professed the irrevocable repercussions of the aforementioned amendment before its ratification by the legislature. The aftermaths of the country’s most controversial constitutional amendment are now ostensible before the world.
The ongoing judicial collisions over the area of jurisdiction of regular and constitutional branches are the outcomes of the 26th Amendment’s muddling provisions. It was prevalently guessed that the enigmatic clauses of the 26th Amendment would compromise judicial independence over the executive branch’s invincibility. While the appointment of the Chief Justice of Pakistan is already flanked with constitutional manoeuvring, there are no less than three ways in which the discrepancy between judicial affairs will continue to play a growing role in eroding the judiciary’s constitutional independence and manipulating the integrity of the institution.
Firstly, the intra-institutional gaps will gather pace against the backdrop of determining process of nature of the cases that would be brought before the book. The depth of justified institutional framework to decide which case would be brought before the regular bench and when the constitutional bench’s judgment would be necessitated will add a layer of precariousness to the judicial affairs. The recent happening of a misplaced case in the court of a regular bench accurately epitomises the future case scenarios in which the confrontation between the judicial benches will make the institution of the judiciary more restive than ever before.
Secondly, the reliability and integrity of the judges are likely to languish in the future. The government’s role in the arbitrary appointment of the judges for the constitutional benches will make the nominees controversial, casting doubts over the case judgments. In particular, the cases featuring the government as a case party will become the subjects of flashpoint debates. Consequently, the final verdicts of such cases shall be deemed as one-sided because it makes little sense that the government is given ample powers to sculpt the fate of the cases in which it is accused of defying the law.
Succinctly, the citizens’ confidence in the apex court will suffer the setbacks of the 26th constitutional amendment. It seems pertinent to say that the Supreme Court of Pakistan is perceived as the last court of resort in the common man’s eye. The subjects of the state earnestly believe that they could find some solace in the premises of the Supreme Court if the two other branches of the state fail to safeguard the people’s constitutional privileges. Nonetheless, the apex court’s obliterated independence and compromised readability will be scarcely less worrying for likewise traumatised segments of society.
All things considered, the futuristic picturesque of the country’s judicial system seems gravely bleak. The downplayed judicial independence is expected to spearhead an irrevocable judicial crisis in the country. The discontent between the judges shall not only offer room for institutional inadequacies, but a smooth state progression will also remain a pipe dream for the nation. For all these reasons, the need for the reconsideration of the 26th Constitutional Amendment is no shorter of dire. The ruling elites ought to ensure that Pakistan’s democratic spirit is kept unstinted. It must not be swept out of the mind that the states that play out at the supremacy of their institutions fall prey to civil unrest and extraneous perils
- The writer is a student of English Literature at University of the Punjab.