No one had thought that one day the Chief Justice of Pakistan would be fighting an otherwise losing battle against the parliament for retaining the suo motu (on its own motion) power. The stern reaction shows that how dear suo motu powers are to the CJP.
There have appeared two main anomalies with taking the suo motu notice on issues concerning fundamental rights of citizens. First, the suo motu power embodies the concentration of power in the chair of the CJP, rendering the rest of the judges and their accumulative wisdom irrelevant. Second, the cases sprouted from the suo motu notice remained bereft of enjoying the option of appeal against the decision.
In a federation, which depends on the devolution of power to provinces, the SC ironically tends to militate against the idea of decentralization of power within the sphere of its institution. The time has changed. Instead of using the suo motu power sparingly, the SC under the order of the CJP abused the power. Time is now ripe for diluting the power to close the door of one man taking all decisions.
Similarly, it is an injustice to deny the right of appeal against an issued decision. Justice is to offer a right of appeal, which should be heard by judges other than the judges who issued the decision. If the SC is not ready to grant the right of appeal, the power of suo motu should be taken away from the SC. The point is simple: instead of becoming a final arbiter, the SC cannot be a monarch, whose words are ultimate. It is a democratic right of anyone to file an appeal against a decision to seek justice, if it had been denied.
It is apparent that over the years, the suo motu power vested in the chair of the CJP erected a new centre of power. The concept of the trichotomy of power is meant for making the judiciary work independently and not for ruling over the Parliament. The SC cannot abuse the suo motu power to interfere in the work of the executive or the legislators, the other two components of trichotomy. Through suo motu notices, the SC turned the concept of the trichotomy of power against the Parliament. Undue and unchallenged interference in the affairs of the executive and the legislators hobbled the state machinery.
Proposed by Parliament, the Supreme Court Practice and Procedure Bill, 2023 is meant for rectifying the anomalies. The Bill was sent to the president. However, on April 8, by returning the Bill to the parliament, President Arif Alvi misinterpreted Article 191, Article 67, and Article 142 of the Constitution.
With the formation of the bench, the CJ has come open to show his cards. The CJP expected that the bench would defend his right to hog power. Nevertheless, the whole system is at halt to see the way the bench would prevent democracy from penetrating the SC. The reasoning in its order was not just weak but perfunctory
Article 191 says, “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.” That is, the SC may make rules first as per the constitution. However, if a new law is made by the Parliament, the SC would make rules accordingly. To elaborate, the Article describes two sources: first, the Constitution; and second, the law. That is, if the constitution is silent, or if a new law is framed, the SC would make rules accordingly. Furthermore, the Article does not permit the SC to avoid the Constitution or the law. Similarly, the Article does not permit the SC to make laws as per its own sweet will.
Article 67 says, “Subject to the Constitution, a House may make rules for regulating its procedure and the conduct of its business …”. The article does not negate Article 191, which permits the Parliament to enact a law in light of which the Supreme Court would make its rules. Even a reading of the Bill does not show any intention of the House to curtail the independence of the judiciary. The point of concern should be the independence of the judiciary. If independence is retained, there is no problem with any Bill.
Article 142 talks about jurisdiction and power of the SC but the Bill talks about the practice and procedure at the SC. The Article does not infringe upon jurisdiction and power of the SC. The Bill does not trample upon the Original Jurisdiction of the SC, as enshrined in Article 184(3). Instead, the Bill requests the SC to use Article 184(3) in a democratic and consultative way.
Misinterpreting the constitution for the sheer purpose of politics is an act of dishonesty done by the presidency. The tyranny is that President Alvi is playing politics.
To make a pre-emptive strike, the SC has arranged an eight-member bench of like-minded judges to hear the writ petitions on the Bill, which has yet to take the form of an Act. Under the incumbent CJP, the SC has passed a judgement against the Bill before the Bill becomes an Act to deny the privilege of making a bench of like-minded judges.
The underlying reason for the reaction of the SC is not to defend its territory but to defend the chair of the CJP, which would be deprived of its absolute powers: first, to take suo moto notice; and second, to make a bench of his liking to achieve a preconceived desired results.
The constitution of an eight-member bench of like-minded judges is an expression of the fact that the CJP has a simple majority of eight judges on his side. The remaining seven judges are a minority. In the recent past, the strategy of out-of-turn promotions and elevations of junior judges from high courts to the SC has yielded its results. The CJP has secured a simple majority at least.
With the formation of the bench, the CJ has come open to show his cards. The CJP expected that the bench would defend his right to hog power. Nevertheless, the whole system is at halt to see the way the bench would prevent democracy from penetrating the SC. The reasoning in its order was not just weak but perfunctory.
