By Qamar Bashir
In all wisdom, the Constitution has bound the government, legislature, and judiciary in their respective spheres, and none is above or beyond it."Every law enacted by the parliament is subject to interpretation by the Supreme Court in light of the ideals and purposes of the constitution. It is the prerogative of the legislature to amend the constitution and pass laws; it is the responsibility of the judiciary to determine whether such laws violate the fundamental structure of the constitution.
Most countries have settled the question of which pillar is superior to the other shortly after their establishment, but in Pakistan, forced by our vested interest, we bring up the issue whenever and wherever it suits the authorities who matter in Pakistan. Despite the fact that the constitution has assigned each pillar a distinct function, jurisdiction, and level of importance, it has not favored one over the
others. Parliament cannot pass a law that contradicts the fundamental structure of the constitution until the constitution is amended and the amendment is in harmony with its fundamental structure of the constitution. Once a law is enacted, the parliament gets out of it and the jurisdiction of the supreme court starts which has the exclusive and final authority and a last resort to evaluate it against the
constitution and declare it constitutional or invalid. The constitution so zealously protects the independence of the judiciary that even the parliament cannot amend the constitution to clip the review powers of the judiciary. The matter was decided in the case of Minerva Mills Ltd. v. Union of India in 1980. The Indian Supreme Court was asked to decide whether the government had the power to amend the
Constitution to curtail the power of judicial review. The court held that the power to amend the Constitution did not include the power to destroy its basic structure, which included the power of judicial review. The court held that the Constitution was supreme and that no branch of government, including Parliament, could override its basic structure. In the Marbury v. Madison, 1803 case, the US Supreme Court was asked to decide whether a law passed by Congress was constitutional. The court held that it had the power of judicial review and that it could strike down
laws passed by Congress if they were unconstitutional. The court also held that the Constitution was supreme and that no branch of government, including Congress, could violate its provisions. In this sense, the judiciary is seen as a co-equal branch of state with the legislative and executive branches.
In India, there have been several instances where the Supreme Court has overruled decisions taken by the government or the legislature. For example, in 2016, the court struck down a law passed by the parliament that allowed convicted lawmakers to continue holding office. The court held that the law violated the constitutional principle of separation of powers and undermined the integrity of the political system.
Sadly, even after more than seventy-five years of this beleaguered nation's existence, we as a nation continues to struggle to define and redefine the jurisdiction and superiority of the parliament over judiciary, or the executive and vice versa not on the basis of merit, objectivity, national interest, or welfare of the people, but rather swaying every now and then in the direction best suited to the vested interests. When in power, the parties conveniently pursue one position, but when in opposition, they perform a complete 180 and develop the exact opposite
narrative. This war of imposing superiorities of one pillar over the other pillar has taken an ugly turn in Pakistan, where the entire opposition sits outside the assemblies and the legislature has become an extension of the government. They, both motivated by the similarity and unity of their vested interests, have joined hands to arm-twist the judiciary, reduce it to a state of irrelevance, and erode its power to the point where it becomes an extension of the executive-parliament incapable of making independent decisions.Sadly again, Parliament and the Executive have adopted the same tone and tenor when criticizing the superior judiciary on trivial accounts and matters and questioning each and every action taken by the chief justice, including formation of benches, allocation of business to the judges, and transfer of cases from one judge to the next, despite the fact that it is the sole prerogative of the chief justice to allocate business to the judges and run the superior judiciary as he or she deems appropriate. Perhaps this is only occurring in Pakistan, where we are unable to resolve fundamental questions about our existence and the purpose of our institutions.
In Pakistan and everywhere in the world, the chief justice has the authority to form court benches to hear and decide cases, determine the
composition and number of judges on each bench, transfer cases from one bench to another and to assemble larger benches to hear cases of great public importance. In the United States, the Chief Justice has the authority to assign judges to different circuits and panels of the U.S. Courts of Appeals, as well as the power to temporarily assign judges from different circuits to sit on another circuit when necessary. In India, the Chief Justice has the authority to form Supreme Court benches, assign cases to these benches, transfer cases between benches, and refer
cases to larger benches for hearing and decision. In the United Kingdom, the Lord Chief Justice assigns judges to different cases and circuits in the High Court and Court of Appeal, transfers cases from one court to another, and establishes new courts or tribunals as needed.
The truncated and opposition less parliament, which even perhaps lacks the moral authority or justification to make laws, is hell-bent on reducing the powers of the chief justice and handing them over to its hand-picked and cultivated judges without considering the grave and far-reaching consequences of removing the power, which is a crucial aspect of judicial administration around the world and plays a vital role in ensuring the fairness, efficiency, and independence of the judicial system. If the Chief Justice loses the authority to form benches and assign cases, there may be delays in the hearing and resolution of cases leading to confusion and inefficiency in the court system and resultant delay in the
administration of justice for litigants. Without central authority, benches will be formed with biases or favoritism based on personal or political affiliations rather than qualifications and experience.-Writer is former Press Secretary to the President Former MD, SRBC,Former Minister Press, Embassy of Pakistan to France.
