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All eyes on our Lordships

In an ever changing political landscape, there is hardly a mundane day for an average political observer. The turbulence of the political arena has often dragged the judiciary too into this quagmire. One has to concede that the judiciary, entrusted with safeguarding the constitution has often sided with those in authority as opposed to being the guardians of justice. Our judicial history remains tainted with the courts validating military coups with alacrity. On the few occasions that the courts deplored usurpers, the court’s decision came long after the dictator had perished into political oblivion.

Juxtaposed with this, the last few years have witnessed a wave of judicial activism marked by suo-mottos and a generous amount of contempt proceedings. Disqualifying an elected Prime Minister and even questioning the country’s powerful military establishment about its role in Baluchistan, the superior courts have shown little propensity to capitulate under mounting political pressure.

It is in this milieu that the nation looks at our Lordships as the country’s future hangs in the balance. The full court of the Supreme Court has reserved its judgment on the challenges to the 18th and 21rst Constitutional Amendments while the 3 member judicial commission constituted to probe allegations of rigging in the 2013 elections has done the same. With the government looking precarious even two years after assuming office and the military engrossed in an operation against militants (Zarb e Azab), the judiciary may determine the fate of both, the government and the Zarb e Azab.

The judiciary is inarguably vested with the power of judicial review, i.e. the power to strike down a law in derogation with the Constitution. The question for the court’s determination in the challenges to the Constitutional Amendments, however, is whether the Constitution has an overarching basic structure. Proponent of the basic structure argue that military courts create a parallel judicial system, making the Anti-Terrorism and Session Courts redundant in many cases. Arguing that an independent judiciary and the right to fair trial are essential to our polity, the Court must enumerate a Basic Structure that constraints the parliament from undermining the two according to the Basic Structure’s advocates.

Its critics, on the other hand argue that military courts are the need of the hour. The abysmal conviction rate of Session and Anti-Terrorism Courts lends credence to the creation of military courts. But can a court that claims to have buried the doctrine of necessity forever validate military courts arguing that that they are necessary. Would validating military courts exhume the now buried doctrine of necessity? Would the courts open the doors for another military intervention by giving their nod to military courts? A number of legal scholars, on the other hand argue that the Supreme Court must refrain from invalidating a Constitutional Amendment, notwithstanding its merits or demerits. They argue that the judiciary is a product of the Constitution. It derives its jurisdiction, its legitimacy from the Constitution and as such cannot invalidate a part of the document that creates it. Recognizing a basic structure would not only put the judiciary on a higher pedestal than the Constitution, it would inarguably place shackles on the parliament’s sovereignty, an antithesis to the notion of separation of powers.

The three member Judicial Commission headed by the Hon’ble Chief Justice Milord Justice Nasir-ul-Mulk too has reserved its judgment. The question for the court’s determination here is whether the elections were rigged and was the rigging systematic. Most commentators are of the view that while the commission may reject allegations of systematic rigging, it could concede to the irregularities in the electoral process in numerous constituencies. This leads us to another question. Does the current government reflect the mandate of the people? Whether systematic or not, the government’s authority may weaken if a number of constituencies show a large number of unverified votes, implying that the results of the polls may have been different had the Election Commission been successful in carrying out elections in a transparent and efficient manner. If the courts order the Election Commission to carry out re-elections on a large number of seats, does the carrying out of by-elections on such a large scale mean curtains for the Nawaz government? Would the inability to prove systematic rigging be a political defeat for the PTI or would it rejoice, looking at the commission and its findings as the culmination of its struggle? Would the Prime Minister be compelled to dissolve the assemblies? With Tahir UlQadi’s return coinciding with these events, are the days of the Nawaz government numbered?

With the judiciary in the limelight, one must remain cognizant of the fact that the current CJ Milord Justice Nasir-ul-Mulk retires next month. The findings of the judicial commission and the court’s verdict in the Constitutional Amendments would not only determine the fate of the government and Zarb-e-Azab, it would determine something else too. It would determine the legacy that Justice Mulk leaves behind. While deciding other things, the next few days would decide the words with which the current Chief Justice is remembered. Whether he is remembered with the likes of John Marshall and Earl Warren or Munir and Anwar u Haq, we are yet to see. For now, all eyes are fixed on the Lordships.

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