The impetus of having a codified constitution in a country lies in the notion of, among other things, defining and protecting the fundamental rights of its citizens. Limiting and checking the exercise of executive powers. And requiring the state actors and institutions to act within their prescribed parameters.

After 26 years of its inception, political struggles and failure of two earlier constitutions, Pakistan succeeded once again in having a uniform code of its own back in 1973. It is the constitution of the Islamic Republic of Pakistan. Despite facing numerous amendments, the code provides for a democratically elected and parliamentary form of government. Along with establishment of a supreme court to deal with arbitrary use of governmental powers and protection of fundamental rights protected under the code.

This judicial embargo on the legislative powers of the Parliament and administrative checks on public functionaries arms the judicial elite of the country. With unique interpretative powers to claim a final say in matters of controversies. And the Supreme Court can strike down any extra-constitutional legislation or undo any administrative act not warranted by law.

Those unbridled powers of the Supreme Court of interpreting and striking down legislation often get criticism from lawyers and politicians. Politicians of the country are of the view that Parliamentarians are elective representatives of the people. And they should have the final say in matters of controversy. On the other hand judicial elite, termed as guardians of the constitution, claims to have an upper voice. And thus the responsibility to dispute resolution shifts from Parliament to Court. From an accountable body to an unaccountable one.  

Politicians believe they are accountable to Parliament through regular elections, and parliamentary and judicial checks. Judges on the other hand get appointments rather than elected and hence lack democratic legitimacy.

Court’s are democracy’s referees and need to show deference to parliament. However, Judges also have an agenda of their own in cases aimed at holding govt to account. This not only undermines policies pursued by the elected govt and approved by parliament. But also endangers democracy, effectiveness, and federalism.

J.A.G Grifith in his book The political Constitutionalism 2008 opined that

judges cannot be politically neutral, and they are not effective guardians of individual liberty’.

Adam Tomkins in his “Our Republican Constitution” 2005 p.3 says,

No matter how democracy defines judges can never hope to match the democratic legitimacy of elected politicians.

However, if there is a debate over who has the final word in controversy between the courts and the parliament. There is no clear and straightforward answer. The courts operate on the premise that the Constitution is the only supreme law of the land. And no act of the parliament is superior to the constitution. Thus anything coming its way must strike down.

Sometimes, judges get accusation of interpreting laws according to their consciousness. While ignoring the intentions of the parliament and the objectives of the constitution.  

Parliamentarians on the other hand maintain that Parliament is supreme. And it can change even the constitution itself by an amendment bill passed by two-third majority. And judges who get appointments by the executive must show deference to Parliamentary supremacy, executive necessity, and democratic norms.

The inherent rifts and overlapping powers of the Courts and the Parliament do not only create uncertainties around the legal system. They also shake the trust public places in the Judicial and legislative system of the country.

Supreme Court decisions, irrespective of their veracity, are followed and respected as judicial precedents until they are reversed by the supreme court itself or the Parliament legislates over them otherwise, rendering the laws uncertain and ambiguous.

A recent example of it could be seen in varying judgements of the supreme court over Article 63 of the constitution wherein SC disqualified politicians for life and termed lifetime disqualifications under article 63 a “black law” afterwards. A rather activist approach of the court of final resort towards political cases adds a lot to its fiasco. 

Same goes with the acts of Parliament, a bill passed by the parliament and assented by the President is law until it is repealed or amended by the Parliament itself or is challenged and altered by the Courts, thus, creating ambiguities towards the existence and applicability of laws.

Parliament by its composition and procedures is well equipped to hold good inquiries and debates on proposed legislation. Which is vital for clear certain and prospective law making. However, insufficient accountability of Parliamentarians, lack of participation of adult franchise in electoral processes, fairness of elections are few of the downfalls of Parliamentary law making processes.

The legal system of a state based on trichotomy of powers fails to serve its objectives when one organ oversteps into the affairs of the others. However, these organs of the state are constrained to move by necessary motion of the things. Strict adherence to separation of powers is impracticable, the guards must guard themselves through constructive dialogues, self-correction and by paying deference to each other. 

Posted by Babar Mushtaq

Babar Mushtaq, is a University of London Alumnus from Karachi, Pakistan. He was called to the Bar of England and Wales in 2021. And he runs his own law firm in Karachi called Legal Insiders - Barristers & Attorneys.

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