Muhammad Usman Adil
“It would be very pertinent to specify the contemporary highly unstable aura as judicio political collapse prompted by the ouster of 2018’s regime at losing the establishment backed enforced coalition’s trust in parliamentary premises”. From Qasim Suri Ruling Case, where court ardently inhumed necessity’s doctrine by declaring true-blue deputy speaker’s hastened ruling contrary to constitution, to Defense Ministry’s plea to hold polls on same day in which court demonstrated flexibility in its constitutional spirit subjected to parties’ consensus, we have undergone legally justified and politically enforced ‘judicial activism’ where judicial actors have had to shoot political scenes and this entire drama has costed the country alot.
Political instability in Pakistan is precipitated by “greed for power”, injected in politically immatured minds by de facto ruling branch. Implicitly, this wish to rule is not to target the agonies of depressed masses or for general prosperity but to rule the opposition oppressively and so called revolutionarily in order to secure own political future and to wipe out the dissenting elements from stage. Government and Opposition are the glamour of parliamentary democracy and are inevitable pillars of the political system which are equally recognized as exalted roles around the globe. But Pakistan whose entire political forum revolves around the ‘Lust for Power’, lies at disparate site where being someone on left side of the assembly’s speaker is considered akin to figmental in system. Abovementioned scenario has circumscribed system only to regime holders whose self centered policies for a prosperous political future have served the nation in a disparaging way where the very basic rights enshrined in state’s politically sacred document like right of life along with dignity, self respect, and equality are highly compromised under the aegis of so called mother-‘the state’. Best example of this dilemma is the current scheme of long queues of impotent masses over the roads for arranging merely a fortnight meal to stay alive. But in this case, the judiciary which has badly failed to secure the marginalised sector’s rights while prioritizing political stage in its sphere of attention via pleas and most interestingly the judicial weapon-suo motto, was kind enough to declare aforesaid scheme as contradictory to the principles of self respect and dignity of a person. Lahore High Court, one of the judicial forums of the country, observed in its verdict that the distribution of free flour in such a derogatory way, was blatant violation of self respect and dignity. Shahid Kamal Khan J.’s order barred the caretaker setup from publicising the deadly scheme as it was corresponding to heighten public grievances and laying out nauseated regime’s performa through government funds was equal to “Corrupt Practice” and “Bad Faith”.
This well-versed verdict noted that article 14 of the constitution must not be violated during the procedure of facilitating deserving class. In the context of this engrossing saga of untoward intercourse between two nature wise irreconcilable forums, the event which makes this era as judicio political, is the polls matter in two provinces of state followed by the dissolution of those assemblies on individual whim as core part of political strategy. This scenario welcomes another pandora box into the tale which is the rise of a crucial query that should assemblies be dissolved on an individual’s whim to wrap up political scores as PTI’s supremo asked provincial executives to dissolve houses politically. And this question secured utmost attention in outlines when similar sort of point was inquired by one of the apex court’s jurists during the proceedings of the case before a larger bench. Athar Minallah J.’s remarks of analyzing the legality of dissolution of assemblies stirred a legal debate. A section of legal fraternity was astonished at former’s remarks on the issue but those remarks were not counted as something alien to cognitive faculty because United Kingdom’s apex court in a very significant Brexit Case cited as “2019 UKSC 41” had interrogated the prorogation of parliament by the then country’s head of government.In a historic judgement authored by “Lady Hale”, president of the court and “Lord Reed”, deputy president of the court, judges made following observations on case penned in para fifty-” For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course”. So in the light of aforementioned judgement, we have an example in commonwealth’s judicial history where court questioned reasonable justifications for doing so. And this also accounts Justice Minallah’s concern as genuine as it could be.
It is much germane to think at this point that why it was considered rightful and mandatory to empower the chief executives in such a dictatorial way. This discretionary power of dissolution obtrusively tramples the public mandate in the absence of elected representatives’ will. To reinforce this stance, there is need to add a worthy question that under such circumstances, how could the dissolution by Gulam Muhammad which is considered as highly calamitous in country’s political setup, be consider distinguish from the contemporary breakdown? Is it just a shift of command from one character to other? Though this dissolution by chief ministers in their respective domains serves the legal commands but as this option is an arbitrary one in the hand of executives encompassed by autocratic elements in a democracy based system, therefore it is high time to subject the breakdown of legislative machinery to certain conditions and reasonable justifications. Anyway, after dissolution, to put the political policy into a bankable practice, poll was alike ‘do or die’ state for the team who played that ball. But the ruling section due to successive plummet of political repute as a result of opponent’s potent narratives, and election body whose chief was securing the interests of those who inwardly made this lucrative job possible for him even after a puissant bureaucratic career, were not ready to do this stunt and consequently matter was pushed into judicial boundary from political lap. Judicial mechanism of the case begun at lower level, the High Court, whose judge after hearing the respective counsels, ordered the concerned authorities to announce polls date within the prescribed constitutional time limit. But electrified story got an interesting twist when country’s top court invited the case at its threshold through suo motto notice by undermining the lower forum’s measures for the safety of constitutional spirits. Superior court’s overtake on case proved unprolific and has failed to serve the constitutional values. Rather, this step of court *added fuel to the fire and indulged the country into another hot debate of ‘One Man Show* ‘ through its own members and led to the split in court over administrative affairs of court. Supreme court excerpts its suo motto jurisdiction from article 184(3) of the constitution which is stated as “Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article”.
The clause unequivocally explains the court’s ambit where this jurisdiction can be employed that jurisprudence of this judicial power is all about the enforcement of fundamental rights but supreme court designed the tool for judicio political purposes based on its annotation throughout the time. History right through the reigns of *judicial activists* , Iftikhar Chaudhary and Saqib Nisar, clearly apprises that “how this public welfare tool turned into arbitrary judicial tool”. Here it is requisite to mention that more perplexing phenomenon even than the 184(3), is the apex court’s power to interpret the constitution. As supreme court with this role can do as worse as possible with constitution and as it is considered the root cause of ‘judicial wrongs’ so this role itself needs to be interpreted and regulated. Chief Judge’s discretionary powers of bench formulation and suo motto notice have been an interesting agenda of political and legal tables. While phrasing this scenario as judicial dictatorship and one man’s rule over entire institute, it has been a major demand of concerned sectors to regulate these discretionary powers. During current judicio political mess, this issue has echoed emphatically within the boundaries of court too, as senior puisne judge of court, Qazi Faez Issa J., penned following observations in a recent judgement ( SMC No. 4 of 2022)-“The Supreme Court comprises of Chief Justice and all Judges. The Constitution does not grant to the Chief Justice unilateral and arbitrary power to decide the matters. With respect, Chief Justice cannot substitute his personal wisdom with that of the Constitution. Collective determination by the Chief Justice and the Judges of the Supreme Court can also not be assumed by an individual, albeit the Chief Justice”. Taking advantage of the dissent in court, the anti poll regime used its legislative power in a malafide manner to deter the bench from upholding its oath in election case. Parliament hurriedly passed the bill titled as ” Supreme Court Practice and Procedure Bill, 2023″, which latter on was challenged before the court through petitions and court while jealously guarding its jurisdiction, halted the bill from taking effects by relying on a principle stated in a famous American Constitutional Law Case ( McCulloch V. Maryland, 17 US 316_1819). Nine member bench wrote in its stay order that ” power to regulate involves power to destroy” and thing susceptible to destruction here is the independence of the judiciary. In the midst of predicament, apex court decided its first suo motto case of ongoing year in which bench specified the categories of dissolution and role of respective authorities for appointing polls date. In the judgement, while interpreting statues, court counted the head of state as competent to announce polls date in densely populated province, whose governor was not involved in breakdown procedure.
Whereas in Khyber Pakhtunkhwa, held the head of province responsible for aforesaid role as governor took part in dissolution there. One astonishing aspect of the judgement was to empower the electoral body to propose a date at “barest minimum deviation” from constitutional deadline as sufficient span had passed and it was quite tricky to meet the standard laid out by Constitution. Undoubtedly, court derived this minimum deviation in compliance with ground situation but it was likely to “rewrite the constitution” and a failure on judicial part. Supreme Court’s judgement could not put an end to the prevailing disorder. Meanwhile, politically motivated Election Commission confounded the system by notifying the 8th of October as fresh date for polls. But through a constitutional petition, matter once again stepped into the judicial doorway, where three members bench after analyzing arguments, issued another judgement ( Constitution Petition No. 05 of 2023) in this regard. In the said judgement, the bench unanimously quashed the Commission’s impugned order of maximum deviation from Constitutional ultimatum by declaring it “unconstitutional and void-ab-initio”. Court marked the 14th of May as ‘Battling Ground’ for Punjab’s throne. Through its judicial order, court also settled the ongoing judicio political debate of 4:3 and 3:2 by proclaiming the position of dissenting group of prior judgement as “erroneous and non sustainable in law”. Likewise first order, this verdict again provoked a wave of anxiety in legal minds by discriminating one province while deciding the similar case for two provinces. Treating two provinces differently under same constitutional standard by upholding constitution and fundamental right of vote for only one province, is something very unintelligible which tacitly conveys that this matter is more of political purposes than the constitutional one. Early elections’ issue triggered by dissolution of assemblies, entered its next stage of judicial intervention when Defense Ministry filed an apparently unconstitutional plea in top court for conducting polls on same day all across the country to arrange a ‘sigh of political relief’ from court. Court’s Registrar Office zealously entertained the plea by compromising the prior judicial conduct in case. During the recent proceedings of case, three members bench, which was very determinative in its constitutional spirit, has left the Constitution to be decided by the parties as per their political wishes. Efforts for political talks in such highly tempered surroundings are ineluctable and need to be valued but it is equally insane to leave a Constitutional matter to the urge of litigants by reviving the very notorious character of Pakistan’s judicial history- *The Doctrine of Necessity.* Eventually, throughout the series of exasperating events, _from arbitrary dissolution of legislatory houses to unconstitutional rewriting of constitution, and contravention of constitution_ , the political and judicial characters have established such precedents which are *inimical to the judicio political future of Pakistan.*