The following piece is a brief overview of recent developments that are visible to the public eye having taken place inside and around the highest seat of justice of the country.
Our Supreme Court is in the docks, again. And this ‘man-made’ predicament is certainly not unexpected. The internal differences, more technical than prejudicial, among the erudite justices of the top court of the country on the issue of the constitution of benches and fixing of causes, a power currently vested under the Supreme Court Rules 1980 in the honorable Chief Justice of Pakistan, has allowed other extraneous factors to creep in. This external addition to an otherwise internal discourse has the potential, if not the intent, to convert difference of opinion into a full-fledged war. And the troubling signs have started to appear. Many, blessed with a higher familiarity with our history are hearing the war sirens.
But that should not be of much concern as we have been hearing these sirens for the past seventy odd years. Their tone and pitch have varied according to the respective strengths of the contesting parties. This time, however, society is polarized to an irreversible extent, political institutions are at logger heads, state instrumentalities are struggling to retain their evading glory and oppression is galore. Amidst all this, one institution, Supreme Court of Pakistan, tasked to resolve disputes among ordinary mortals including matters involving life and death, is facing its own battle of survival.
A three member bench headed by honourable J. Qazi Faiz Esa recently directed through a majority decision (2-1) the postponement of hearing on all matters pending before SC under Art 184 (3) of Constitution. This article grants original jurisdiction to SC to hear cases involving fundamental rights, matters of public importance and empowers SC to take Suo Motu notices too. Just for readers’ interest, some of the most important cases like Mr. Nawaz Sharif’s and Mr. Jehangir Khan Tarin’s disqualifications, validating the unceremonious end to Mr. Imran Khan’s government in April last year and numerous other matters were all filed, heard and decided under this Article of the Constitution. Therefore, its impact and significance cannot be ignored though there are ominous efforts afoot to restrict the frequent penetrative use of this constitutional provision. The reasons are unclear but not the motives. Stripping Article 184 (3) of its overarching domain is surely in the interest of all those within its punitive reach.
Currently, a SC bench headed by CJP is hearing an important but highly contested constitutional matter under Article 184(3) questioning the delay in holding of elections in two provinces KPK and Punjab. It may be noted that elections in provinces are to be held not later than 90 days from the date of dissolution.
In the above situation, the directions of honourable J. Qazi Faiz Esa have drawn appreciation from certain political parties favouring delay in elections and criticism from others demanding elections as per mandate of constitution. Some independent analysts consider that J. Qazi Faiz Esa’s directions are aimed to strengthen the institution only. I would for the sake of maintaining a balanced approach, not side with any point of view that is on offer.
It is believed and feared that the Supreme Court has split into two factions. The primary irritant is the power vested exclusively in CJ Pakistan under the SC Rules 1980 to constitute benches and fix causes in his discretion before any bench of his choice. This exclusivity has been questioned repeatedly by some honourable SC judges while other judges find no issue with this power. Hence the split.
Purportedly, sensing a division in Supreme Court and to gather some benefit therefrom, the Parliament has passed a law called Supreme Court (Practice and Procedure) Bill, 2023, which is now on its way to the President for his assent where after it will become an Act of the Parliament. Through this bill the powers of the CJP have been ‘structured‘ and his role in the constitution of benches and fixing of cases has been curtailed. Moreover, a right of appeal has been provided against the judgments delivered in the exercise of jurisdiction under article 184 (3). The matter does not stop here. It has also been provided in the said law that the right of appeal shall have a retrospective effect meaning all previously decided cases under Article 184 (3) can be challenged in appeal. Uncanny, it may seem but these were the exact demands of some learned judges of the Supreme Court. Surprisingly, the Supreme Court was not consulted as a matter of proprietary before the Bill was passed by the Parliament.
Through a circular issued by the Registrar Supreme Court on the directions of the honorable Chief Justice of Pakistan, it has been clarified that the power to constitute benches and fix matters before them is the sole prerogative of the CJ and that this matter has been settled in a case reported as Suo Moto Case No.4 of 2021 (PLD 2022 SC 306) by a larger bench (5 Judges). Apparently, this circular is meant to nullify effect of afore stated order passed by honorable J. Qazi Faiz Esa.
As a student of law, the following questions arise from the facts stated above:
1) Can a judicial order (J. Qazi Faiz Esa) be rendered ineffective through a circular issued in exercise of administrative powers by Chief Justice Pakistan?
2) Can the judicial power of the judges be controlled through the administrative powers vested in the Chief Justice of Pakistan under the Supreme Court Rules 1980?
3) What is the effect of honorable J. Qazi Faiz Esa’s order if a similar matter has been decided by a larger bench holding a contrary view? Is the circular meant to merely bring this fact on record for information of other learned judges as well as public at large?
4) Can two judges of Supreme Court stop the other 15 judges of Supreme Court from working?
5) Does this kind of order tantamount to suspending operations of highest judicature as an institution?
6) Can honorable J. Qazi Faiz Esa’s order be construed as having been passed in exercise of powers not otherwise vested in a Supreme Court judge?
7) Has honorable J. Qazi Faiz Esa order virtually suspended the operation of Article 184(3) of Constitution in its totality?
8) As Supreme Court by definition includes all the judges including the Chief Justice of Pakistan, therefore, whether a judge of Supreme Court, give unto himself the power to define or restrict jurisdiction being exercised by other brother judges without there being any legal provision that allows him to do so?
The above questions, I believe, will be looked into by all the respected judges with the main objective of concluding the matter in the best interest of the institution as well as the people of Pakistan. This belief is embedded in the highest quality of judicial wisdom that Supreme Court possesses today.
The primary duty of our Supreme Court is to find reason and better sense to preserve and protect its constitutional mandate. It is absolutely necessary that all the judges must sit together to find an amicable solution to the issue at hand. In all fairness, the new law governing Supreme Court practice and procedure contains some valid provisions but there are certain matters in the said law that do not qualify as constitutionally correct especially the matter relating to the competence of the Parliament to frame such a law. Also noteworthy is whether a constitutional amendment is required to structure the jurisdiction of the Supreme Court under article 184(3) or would a simple act of Parliament suffice. It is not far from chance that this new law will be challenged before the Supreme Court in due course and will be examined in the light of various constitutional guarantees enjoyed by the judicature. In particular it will be seen whether this law invades the independence of judiciary.
We have a highly polarized society but that should not be a ground to deliver an equally politicized judiciary too. The events of 1997 must stay buried in the past. However, sadly, the recent developments suggest otherwise.
