Who defends parliament?

As the country saw the second round of live proceedings of the Supreme Court of Pakistan on Tuesday, among the many observations made by the honourable justices, there was one that merits broader introspection from within the judiciary, the many 'democrats' that petition the courts, and the public at large. Chief Justice of Pakistan Qazi Faez Isa has reminded the court and the petitioners that the Supreme Court (SC) had endorsed martial law several times in the past and many judges had forgotten their oath after the imposition of martial law, and yet what has led to far more legal challenges is parliament's legislative authority as opposed to the complete surrender before martial law regimes. The chief justice made these comments during the live proceedings on the petitions challenging the SC (Practice and Procedure) Act 2023. Chief Justice Isa added that “everyone is just attacking parliament”, while making a point to highlight how Courtroom No 1 "carries pictures [of those] who violated their oaths by validating martial laws, but nobody moves petitions to express opposition, except when parliament enacts laws”.

For Pakistan, which has suffered decades of undemocratic 'interventions', this is a valid debate. Why the fuss over parliament's authority when parliamentary and judicial authority have been violated by military coups and martial law regimes? At the heart of the ongoing case in the Supreme Court is the debate on the supremacy of parliament. Pakistan has had a long and unsavoury legacy of a judiciary acquiescing to martial law interventions. That had changed somewhat with the Lawyers’ Movement, with judicial reforms becoming a rallying cry for the legal fraternity. The SC (Practice and Procedure) Act 2023 case can be seen in this context as well. Legal observers had largely welcomed parliament's initiative, despite the 'timing' of presenting the bill, saying that it was about time these matters were settled once and for all and that, by empowering two senior-most judges, the law will benefit the judiciary in the long term.

While the case is sub judice, and the many layers of complex jurisprudential questions are for the court and the lawyers to decipher, that there is an open -- and televised -- debate on this can only be seen as a welcome development. For too long has our history of undemocratic governments been spoken about in hushed tones. When the chief justice of the country raises this question, one hopes this opens the door to the larger question of just where democracy and its parliament stands in our judicial and governance structures. Where, for example, does separation of powers figure? This point, raised by Justice Munib Akhtar, also points at institutional limits -- including those placed on both parliament and the judiciary. Can parliament make laws regarding the judiciary? Or does that require a constitutional amendment, as some petitioners have argued in this case?

Within these questions of law, though, resides the simple question of who gets to represent the people: parliament, judiciary, or unelected adventurists? When was the last time we had an outpouring of indignation over state institutions like the judiciary overreaching their jurisdictions? This may also be a question our new and old democrats may wish to ask themselves. Are we here because they have time and again ceded far too much civilian space? And that too for a stint in power that is not truly theirs and from which they have time and again been ousted because they had ceded so much space. If the people's representatives cannot defend their own space, what hope for the people they claim to represent? Regardless of what the verdict is in the ongoing case in the Supreme Court, it is time for the country's political parties and leaders to ask themselves whether they even believe in the supremacy of parliament. The chief justice has asked the tough questions; someone will need to come up with an answer.