A new constitutional crisis has emerged in Pakistan, which for months has been engulfed in another political crisis that shows no signs of abating. The Senate, weeks ago, approved the Supreme Court (Practice and Procedure) Bill, 2023, to clip the discretionary powers of the Chief Justice of Pakistan under Article 184(3) of the Constitution.
The proponents believe that unnecessary intrusion of the judiciary in political matters is the main cause of political instability. Article 184(3) is a rarity. An expansive and at times contentious interpretation of the criteria of public importance and fundamental rights, along with the seemingly selective and inconsistent application of suo motu powers, has made the Supreme Court’s exercise of its original jurisdiction appear arbitrary in some cases. The Supreme Court for many years interpreted its original, and only after the Supreme Court of India started challenging the rigid boundaries of its own judicial domain in the 1970s, that Pakistan also started exploring the ambit of its powers under Article 184(3).
The legislation suggests that the pendulum is indeed on its downward swing– coming on the heels of a detailed dissenting note of the two apex Court judges issued earlier this week, in which they called for revisiting the Chief Justice’s power, saying the country’s top court could not “be dependent on the solitary decision of one man.” The government is proposing to amend the rules of the Supreme Court which is the job of the apex court itself. What if the court takes up a matter of parliamentary rules and procedure tomorrow and starts dictating how the Parliament should conduct its affairs? The bill seeks to amend laws regarding the conduct of the top court and suggests setting up a three-member panel headed by the chief justice to take up suo motu cases.
Nevertheless, a simple act of Parliament to regulate the judiciary with respect to procedural and substantive law might be in conflict with the independence of judiciary which is a basic structure of our constitution. Restructuring of power is currently the sole prerogative of the Chief Justice of Pakistan. All is happening at a time when the South Asian nuclear country is facing a deepening political turmoil, which is exacerbated by an ailing economy. Struggling to recover from the effects of the coronavirus pandemic, disastrous floods, and the Russia-Ukraine war, the country is now facing decades-high inflation and critically low foreign reserves.
The legislation also aims at curbing the powers of the Chief Justice, concerning constitution of benches– an exclusive domain and prerogative of the Chief Justice not only in Pakistan but in many other countries of the world including India, where the power of constitution of benches has been given to Chief Justice through the constitutional provision but in Pakistan, this duty and prerogative for constitution of benches to hear the cases has been given to Chief Justice of Pakistan under the Supreme Court Rules, 1980, and these Rules have been made in view of the provision of Article 191 of the Constitution. This practice has continued for decades in Pakistan.
The ultimate purpose behind giving the authority to Chief Justice is to ensure that the apex court is able to fulfil and discharge the constitutional obligations which govern and provide the rationale for its existence, and on a mere apprehension the authority and prerogative should not be regulated or curtailed, which would not be in the interest of a judicial institution.
Therefore, anything that curtails the authority of the Chief Justice would intrude into the exclusive duty, functions and authority of the Chief Justice relating to constitution of benches and for allocation of cases by them. The power and prerogative for the constitution of benches can not be curtailed or regulated through ordinary legislation but would require an amendment in the Constitution of Pakistan, which requires to make or add a constitutional provision with two-thirds majority of the total membership of the Parliament as per Article 239 of the Constitution.
Nonetheless, in foresight, the bill appears to have two overarching objectives. The first is to allow the right to appeal in a landmark but highly contentious Panama decision of the Supreme Court, and the second is to clip the wings of upcoming Chief Justices. It appears to be a case of you scratch my back while I will scratch yours. The Apex Court is often expected to fill the gaps left by a dysfunctional system of governance. The Courts may successfully cure many of the nation’s evils only by taking a deliberate approach to addressing injustices in its society through a legal framework that respects the balance of power and can be expanded on by jurists to come.
The Supreme Court’s original jurisdiction, allowing it to act on issues of public importance relating to human rights, is an important and powerful mechanism that, if exercised judiciously and in a manner that respects the separation of powers, can be used to combat impunity, ensure effective redress, enhance protection of human rights and advance respect for the rule of law. The Chief Justice justifies judicial interventions into this area of executive policy making by using his pulpit to excoriate the federal and provincial governments for their performance and lack of coordination.
At the same time, our courts are being proffered unsolicited advice by various quarters. It appears that this section of society believes that the courts have some magic wand, and that the plight of the migrant workers and the suffering masses will come to an end if the courts were seen to be ‘proactive’, summon government officials, reprimand them for their perceived acts of omission and commission, seek weekly and fortnightly reports, and generally sermonize the Executive wing of the State. From a purely legal angle, one can say that suo motu jurisdiction is akin to a situation wherein the complainants/petitioners themselves become the judge and the jury.
This bill apparently has all the ingredients to make it an instrument of the government and the Parliament to intervene in the internal affairs of the courts which is likely to receive equal and proportionate rebuke by the court. Above all, with no opposition in the National Assembly, the bill, even if passed, will lack credibility, legitimacy, and integrity, making it an easy target for the courts to strike it down as soon as it is challenged, as has been done.The guilt trips on the floor of Parliament did nothing to establish the need and urgency of presenting this far-reaching bill, but rather created more doubts and confusions.
The ultimate purpose behind giving the authority to Chief Justice is to ensure that the apex court is able to fulfil and discharge the constitutional obligations which govern and provide the rationale for its existence, and on a mere apprehension the authority and prerogative should not be regulated or curtailed, which would not be in the interest of a judicial institution.
