Beyond the executive-judiciary crisis
The executive-judiciary crisis has another dimension with implications for the future of democracy in Pakistan. This can also be viewed as an attempt by a non-elected state institution, i.e. the judiciary, to restrict the role of the elected state institutions, the executive and parliament, in its affairs.
The military was the first non-elected state institution to neutralise the edge of elected federal governments and parliament. The military resents any active role of the civilian government in its internal organisational and service affairs and disbursement of funds. Parliament has no control over what the military earns through its huge business and commercial activities. The military top brass make the decisive input to major areas of security and foreign policy and often feel unhappy when various parliamentary committees, especially the Public Accounts Committee, become inquisitive about the military’s financial affairs.
Now, the superior judiciary has made it clear that the elected executive and parliament has got nothing to do with the appointment of judges. For all practical purposes, the appointment of judges to superior courts has become the prerogative of the chief justice. The superior judiciary, like the military, has its own accountability process where the elected institutions do not have any role.
The key appointments to the superior judiciary cannot be left to one person, be it the chief justice or the president. Perhaps there is no democratic country where the top judicial appointments are controlled by the chief justice and the executive is to issue the appointment order for whosoever has been approved by the chief justice.
There is a need to bring a constitutional amendment to reverse this trend of negation of elected institutions by non-elected institutions and the appointment of the judges of the superior courts should be through a broad-based consultative process with no one exercising veto power. The elected president/executive cannot be reduced to a mere signing machine. There are two options available for consideration. Either adopt the method of appointment of judges suggested in the Charter of Democracy (CoD) with some modifications or the American system that gives a relatively free hand to the president in nominating the judges of the Supreme Court. However, these nominations become effective only after confirmation by the upper house of the Congress after a thorough scrutiny and public hearing by the relevant Senate committee.
In a democratic system, the primacy of the elected institutions and leaders should be respected. Non-elected institutions can enjoy autonomy as given in the constitution but these institutions should not stretch their autonomy to become ‘independent’ of the elected institutions. Any attempt by a state institution to overwhelm the other under any pretext can cause a collapse of the democratic process.
Dr Hasan-Askari Rizvi is a political and defence analyst.
Source: Daily Times