Thursday May 11, 2023
if the comity of government in vital matters affecting the whole people is to be irrevocably established by the decision of the Supreme Court, … the people cease to be their own rulers…” — Abraham Lincoln
With his voice full of emotion, the Chief Justice of the Supreme Court of Pakistan broke down in tears in public court recently.
According to him, the Supreme Court (SC) is a house divided against itself. Both the SC and the CJP are under attack from within and without. Slander and venom on social media are despicable and call for unreserved condemnation.
This article attempts a personal analysis of the source and causes of our perennial legal troubles.
We have a checkered history; our Board of Supervisors is known to have acted with flexible integrity and complete impunity in the past. At first, the judiciary cooperated with the extraconstitutional. After the second reinstatement of Iftikhar Muhammad Chaudhry as CJP in 2009, the SC strengthened its jurisdiction and supremacy over the constitution, law, parliament, politics and many others with dire consequences. The nation and the judiciary have still not recovered from it.
Our judicial history records extraordinary judgments like Molvi Tamizuddin Khan, Dosso, Begum Nusrat Bhutto and Syed Zafar Ali Shah. They were delivered under the leadership of Muhammad Muneer, Sheikh Anwarul Haq and Irshad Hassan Khan, among others. Thus coup d'états were confirmed and appreciated. What's more, the judiciary was an apologist for extra-constitutional dictators, giving them the power to change the constitution. The constitution was subverted, the elected prime minister was judicially assassinated, two prime ministers were disqualified, democracy was undermined and the nation was disenfranchised.
Privatization of Pakistan Steel Mills was rejected, depriving it of a huge capital injection and modernization. It was an illegal and idiotic usurpation of executive power. In the Reqo Diq case, the SC headed by Iftikhar Muhammad Chaudhry misapprehended jurisdiction and misinterpreted the basic principles of international law. A mere tribunal was enough to overturn our Supreme Court, deny impunity/defense to the state of Pakistan and bring the nation to the brink of financial bankruptcy.
In a suo motu case involving Deputy Speaker of the National Assembly Qasim Khan Suri, the SC issued directions regarding the proceedings of the Parliament. Such interference is completely unsustainable.
In Reference #1 of 2022, the SC's interpretation of Article 63(A) of the Constitution to the effect that a dissident parliamentary vote against party lines does not count is widely accepted as a rewrite of the Constitution.
The Supreme Court (Practice and Procedure) Act 2023 is currently suspended.
Rightly or wrongly, the judicial determination of the election date was not universally accepted. Parliament responded. Against the decision of the Ú, the Ú adopted a resolution that is not binding, but the legislature and the Ú are in dispute with each other.
Such cases of judicial overreach are now part of public discourse. An institution that is unelected and unaccountable, self-appointed and self-perpetuating loses its public legitimacy and moral authority when it "...substitutes its 'will' about what the law should be for its 'judgment' about what the law is . .”
The reference to Justice Qazi Faiz Isa was the catalyst for the SC schism. The rift has gradually deepened following his exclusion from important cases, non-holding of regular court sessions, fixing and non-fixing of cases, constitution of SC benches, exercise of suo motu power, appointment of SC judges in violation of the principle of seniority and most recently denial of permission to withdraw curative petition against him .
Judicial crisis, public debate and SC schism enveloped the person of CJP. He became controversial. Its discretionary powers under SC rules and SC judgments are now considered arbitrary and capricious. The same is now openly disputed by a number of fraternal judges.
CJP's sense of rightness is now seen as a belief in justice. Unfortunately, the prevailing perception is that the CJP has an agenda. You need to be clear about such terms. However, it is very appropriate that the judiciary should not interfere in the political arena.
If there are tears, it is infinitely better if they are the tears of a leader and not of a nation.
