Judicial raj -DAWN

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IT may be prudent to begin this piece with a brief summary of a constitutional principle that typically lies on the tip of the tongue of every legal practitioner: good old ‘separation of powers’. At its simplest, it merely warrants that the three organs of our state — the legislature, the executive and the judiciary — must operate within their respective legal spheres. Each has a special and predefined role, and none may usurp the functions of another.

As representatives of our collective will, the legislature (meaning parliament and our provincial assemblies) is supposed to make the law. The executive (that is the prime and chief ministers, their respective cabinets and all the state machinery under their control) must administer the law. And, as for the judiciary, it is meant to adjudicate claims in accordance with the law, and in this process, interpret it — something that also gives it the power to implicitly ‘make’ the law, since whatever it decides ends up becoming precedent for years and years to come.

The role of the constitutional judge is by far the trickiest. They are entrusted with the onerous responsibility of ensuring that everyone is acting in a manner that is in complete consonance with the law. This includes the legislature, the executive, and naturally, even themselves. At times however, these very judges end up going beyond their own ambit, and thus, wittingly or unwittingly, meander into neighbouring territory and begin commandeering the work of other branches of the state. Whenever this happens, we usually cry foul and accuse them of ‘judicial overreach’.

On some occasions, this can even be a bit benign. Take for example the judgement passed by a four-member bench of the Islamabad High Court earlier this year, which, while (very correctly) declaring that chambers constructed by lawyers on a public playground in the capital amounted to encroachment of state property, also decided to inject its personal brand of ‘poetic justice’ into the verdict.

In the past decade or so, we have seen some mind-bending jurisprudential gymnastics.

“The Federal Government,” it directed in the operative part of its ruling, “shall make arrangements for holding a football tournament amongst students of public schools on the Pakistan Day i.e. 23rd of March, to give tribute to the greatest lawyer of the sub continent and founder of the nation Quaid-e-Azam Mohammad Ali Jinnah”.

This was odd indeed, because issuing orders for commemorative football matches to be conducted at their pleasure is not within the job description of the superior judiciary — unless there really is some obscure (and may I say absurd) law or established policy justifying such a direction that has wholly escaped the attention of this author. This is clearly the discretionary domain of the relevant administrative arm of the state. Far from feeling celebrated, Jinnah — staunch constitutionalist that he was — would most likely have been positively mortified.

In any case, the decreed match never took place (the matter was ultimately taken up by the Supreme Court and went this way and that). Besides, this counts as a relatively minor infraction to begin with. A more serious example presented itself last month. While hearing a bundle of petitions related to smog control and a plethora of other issues, a single bench of the Lahore High Court passed the following order: “Also according to [CTO Lahore], motorists are not deterred by the low amount of challans on account of various traffic violations especially breaching one way rule. For the purpose, it is directed that the minimum challan to be imposed for such violation is increased to Rs. 2000/- which may be imposed by all traffic wardens against violators of traffic rules.”

This is a shocking breach. With one stroke of his mighty pen, a judge of the high court has subverted the powers of the entire Punjab Assembly, the only institution truly authorised to alter fines fixed for traffic violations under the relevant Motor Vehicles Ordinance. Not a single rupee of a penalty set by the legislature can be increased or lowered or even tweaked by appointed judges. This is no joke. It is penal law. Take this reckless logic only a little further and we may soon have judges raising prison sentences just because they feel that they are somehow inadequate in their deterrent effect.

At the very beginning of this year, the Supreme Court elaborated in detail on the dangers of judicial overreach, calling it “totally uncharacteristic of the role of the judiciary” and outright “transgressive”, a type of “adventurism” that “transforms the judicial role of adjudication and interpretation” into “judicial legislation” or “policymaking”. “It is one thing for a judge to progressively interpret the law because of human rights considerations about which he has substantial information,” it noted. “It is quite another to change or ignore the law for economic or social or political reasons based on polycentric considerations beyond the judge’s expertise.”

Likening such overextensions to “judicial imperialism”, the court warned that unlike “a King, who is free to exert and pass orders of his choice”, judges must always remember that it is they who are “first and foremost subject to the Constitution and the law”. The irony of course is that the Supreme Court itself is no stranger to overplaying its hand. In the past decade or so, we have seen some mind-bending jurisprudential gymnastics from the apex court. That such attitudes are now seeping into high courts is not at all surprising. What we are witnessing today, therefore, are not isolated incidents of overreach but a nurtured culture of excess — a judicial raj even.

Our courtrooms cannot be allowed to become durbars. If the superior judiciary truly wishes to serve its people, it must keep itself confined to its legal boundaries and ensure that all other institutions do the same — without fear, without favour and without exception. At least part of our tragedy, it appears more and more so, is a dangerous overabundance of people willing to ‘fix the system’ by hook or crook or without reference to a book, just not enough trying to simply do their jobs.

The writer is a barrister.