A caution and a
critique
Outgoing Senate
Chairman Raza Rabbani has expressed concern over the growing judicial meddling
in legislative processes and the issuance of a contempt notice to the Khyber
Pakhtunkhwa (KP) Assembly Speaker by the Peshawar High Court. Speaking to the
upper house, Rabbani said he did not want to increase further the
intra-institutional rancour. He referred to his recent meeting with the Chief
Justice of Pakistan (CJP) Saqib Nisar in which he had drawn the attention of
the CJP to a judgement written by Justice Nisar himself in which the Supreme
Court had exercised restraint in going beyond the veil of internal proceedings
of parliament in the light of Article 69 of the Constitution. Such restraint,
Rabbani argued, needed to be exhibited by the high courts, lower courts and
judicial and quasi-judicial tribunals as the judiciary and parliament were not
at cross-purposes, the aim of both being to preserve, protect and defend the
Constitution. Apart from the contempt notice to the Speaker KP Assembly,
Rabbani made reference to the Islamabad High Court’s seeking information that infringes upon the
protection afforded to the internal proceedings of parliament. Dilating on the
office of Chairman Senate, which Rabbani pointed out was an office in
perpetuity, he ventured that that office would like an amicable settlement of
these jurisdictional issues in the spirit of mutual institutional respect and
the trichotomy of powers in the Constitution. Whereas Chairman Rabbani
delivered his message softly and as a word of caution, retiring Senator
Farhatullah Babar once again in his bold style took the bull by the horns. Senator
Babar warned against the judicialisation of politics and the politicisation of
the judiciary, the worrying existence of a state within the state and the utter
helplessness of parliament to arrest what he saw as a downslide. He said he
could not applaud the CJP swearing that he had no political agenda or the
judges quoting poetry instead of the Constitution and law. Nor, Senator Babar
went on, could he go beyond accepting the CJP’s telling us that the
Constitution is supreme to also accept the CJP’s telling us that the
Constitution is what he says it is rather than what is written there. When the dignity
of the courts had to be upheld by brandishing the contempt law rather than by
force of argument, he argued, it was time for us to ponder. He said it would be
a disaster if the election year turns into the year of a referendum against the
judiciary. Senator Babar then turned to a critique of the existence of two
states, one de facto, the other de jure, often working at cross-purposes. The
de facto state calls the shots but refuses to submit to accountability. He
lamented the failure of parliament to bring in legislation for the accountability
of all, including judges and generals. He was distressed that all the political
parties, including his own PPP, backtracked on this demand for accountability
across the board, leaving no room for sacred cows. Babar argued that we must resolve
this contradiction of a state within the state if Pakistan is not to be
devoured by it. He also warned against attempts to roll back the 18th
Amendment and provincial autonomy lest it open up a Pandora’s box of risks to
the existing federal structure of the state. Last but not least, Senator Babar
vowed to continue his struggle for this cause even outside parliament.
Ironically, Babar’s critique of his own party was vindicated in the shape of
former prime minister Raja Pervez Ashraf, who distanced the PPP from Babar’s
so-called “personal views”.
Chairman
Rabbani’s gentle admonition goes to the heart of the trend set in motion by
former CJP Iftikhar Chaudhry’s restored court. By now, few are comfortable with
the momentum and direction judicial activism is assuming. It goes without
saying that unless the judiciary goes back to the time honoured practice of
judicial restraint, intra-jurisdictional and intra-institutional conflict could
erode our still precarious democracy. Senator Babar’s strictures about the deep
state ironically owe something to the door being opened by Zulfikar Ali Bhutto
in creating a political cell within the ISI in the early 1970s. Of course, the
Afghan wars and other developments over the years accelerated these humble beginnings
into the unaccountable behemoth the deep state has now become. The military
establishment and the intelligence community have their own heavy responsibilities
to attend to. Arguably, experience shows that their involvement in politics or
other spheres, especially if hidden from public view, has neither helped the
polity nor these institutions. If Chairman Rabbani’s caution and Senator Babar’s
critique are kept in view, taken as a whole they offer a wise course for all
state institutions and political forces to pursue.
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