This article is part of a series titled “Is there a way forward for Pakistan?” Read more about the series here.
Concerns over the Chief Justice of Pakistan’s discretionary powers are now being raised from within the Supreme Court. Institutional solidarity has fractured because of the repeated, bullheaded refusal of each Chief Justice to rein in their power. In a searing critique that brings to light the polarisation now prevalent in the court itself, Justice Mansoor Ali Shah accused the office of the Chief Justice of Pakistan of making the Supreme Court a “one-man show.” He argued that it was “anachronistic, outdated and obsolete but also antithetical to good governance and incompatible to modern democratic norms.”
The dissenting voices in the judiciary have a point. The powers of the chief justice are being exercised without any modicum of accountability. The only institution that can hold the Chief Justice accountable is the Supreme Judicial Council – essentially the judiciary itself. Ironically, that is where the chief justices have shown maximum restraint. This was witnessed when the Women’s Action Forum filed a reference against former chief justice Saqib Nisar. Ultimately, it was a matter never heard or addressed despite the formulation of a well-documented and strong case against him.
Why absolute discretion is problematic
The rule of law and attainment of democracy must be the final destination for any path forward for Pakistan. And while these concepts often elude easy definitions, there are some broad ideas about them that we can all agree on.
First of all, a system that adheres to the rule of law requires decisions to be made based on objective principles, free from arbitrariness – where all cases are treated alike. This means that an individual cannot have absolute discretion.
Moreover, the fundamental principle of democracy is the people’s say in the decisions that impact their lives. Tied with this is the concept of accountability of public officers through the exercise of the vote. And every state institution is bound to respect and aspire to these principles. It is, therefore, necessary for the Supreme Court of Pakistan to not only ensure that every organ of the state is held accountable for any deviation from these principles, but also hold itself to the same standards.
The Supreme Court’s power to take suo motu notice, as is being currently practiced, is difficult to justify from both a rule of law perspective, as well as from the governance standpoint. Judicial restraint and reforming the system that grants these unbridled powers of the Chief Justice of Pakistan is the need of the hour.
The anomaly
In a constitutional system, no court can exercise jurisdiction not specifically granted to it under the law. For a case to be heard directly by the Supreme Court (as per its original jurisdiction), the conditions outlined in Article 184 (3) must be fulfilled: The case must relate to a matter of public importance and involve a violation of the fundamental rights guaranteed under the Constitution.
Since the 1973 Constitution was framed, and all the way to the 1990s, this power was always understood by the Supreme Court to mean that an actual case needed to be filed before it met the criteria of Article 184 (3). During this period, the Chief Justice of Pakistan could not create a case on his own – based on a news headline, letter or his own opinions. This novelty came nearly about two decades after the Constitution was enacted. This power was created through judicial activism. It has no basis in the text of the Constitution, and it had not even been mentioned by the Supreme Court when it framed its own rules in 1980. Despite this, the top court eventually established a precedent that gave the Chief Justice the power to take up matters of public importance out of his own volition.
While there is precedent regarding how the ambiguous terms in 184 (3) are to be interpreted, recent history has demonstrated that what is a matter of public importance depends largely on the views of the Chief Justice of Pakistan. For some, it has been privatization, for others disqualification of politicians. Matters of public importance for the country change as fast as the Chief Justice.
As for fundamental rights, the period spanning from Iftikhar Chaudhry to Saqib Nisar has shown us that if a judge feels strongly enough about an issue, he will interpret a fundamental right so expansively as to justify a foray into making policy. Saqib Nisar did precisely this with the right to life, using it to justify his project of fixing Pakistan’s water woes.
Due to these unenviable precedents, Chief Justice of Pakistan now has the unbridled authority to take up any matter that he considers important enough, and even make a policy that can be imposed on a country of over 220 million people. This is an untenable position for any democracy to have.
The way in which suo motu power are currently being exercised undermines democratic decision-making. By using it to frame policy, the Supreme Court routinely acts beyond the scope of its judicial mandate – acting as the executive or the legislature with the economic or political competencies to participate in either. Under such circumstances, the separation of powers, an essential accountability mechanism in a democracy, is swept aside.
In one of the most infamous recent examples, Chief Justice Saqib Nisar decided that Pakistan needed to build another dam and began using his office to raise funds for the purpose. That was problematic because the country’s policy on water management and the use of natural resources should not be determined by an individual – especially when that person is neither elected nor an expert on the issue.
Policy decisions, whether on public health or the economy, are supposed to be made by elected representatives. The Constitution of Pakistan makes this distinction clear by treating principles of policy as distinct from fundamental rights. The latter can be enforced and implemented by courts; the former are aspirational goals left to the executive and parliamentary discretion. The purpose of the policy principles enshrined in the Constitution is to broadly frame or define the type of democratic system the country ought to have. But it is up to the legitimate stakeholders involved in the democratic process to decide how to get us there.
The democratic process is far better suited than the judiciary to take the right decisions on matters related to public policy. The nature of parliamentary democracy is such that issues must be debated, reasoned, and weighed by elected representatives before decisions can be taken. The entire process is built to accommodate compromises and negotiations on intractable issues. The courts aren’t suited for this because they are fundamentally adversarial in nature. They are built not on compromise, but on exacting legal rules. They cannot weigh the numerous equities at play, for instance, deciding how best to allocate state resources given a certain set of competing interests and influences.
Apart from lacking the expertise to solve these issues, the judiciary is not the right place for these decisions because it is unelected and therefore its policy decisions would lack legitimacy. They cannot be held to account for their bad decisions the same way as parliamentarians can – simply because judges can’t be voted out of office.
This is why whenever the Chief Justice of Pakistan uses the suo motu power to determine the state policy, he undermines democracy. Institutional boundaries are blurred, and an unelected individual is allowed to wield extraordinary power to impose their own subjective economic, social, and political views on an entire nation. And these discretionary powers find no clear basis in the Constitution.
The Rule of Law Problem
That the authority to take suo motu allows judges to form a national policy is enough to consider steps to curtail this power. And even if this power is exercised for fundamental rights protection, the power runs into broader rule of law problems.
When the Chief Justice takes suo motu notice of an issue, he is signalling that he cares deeply about the question it raises. That issue is then heard by a bench that he himself presides over. Thus, it is established even before the first hearing that the judge heading the bench feels strongly about the matter.
Add to this the Chief Justice’s absolute discretion to determine who sits on a bench, hearing a case with him. This means disputes become foregone conclusions. These judges often have the same ideological views on the matter as the top judge. Agreement is guaranteed from the outset. In the rare case where there is dissent, the bench can always be reconstituted. This happened, for instance, when Saqib Nisar abruptly reconstituted a bench to exclude Justice Qazi Faez Isa as soon as a glimmer of disagreement was witnessed, or even with the recent fiasco during the hearing concerning the date for provincial elections in Punjab and KP.
It is an essential attribute of the rule of law and due process that justice must not only be practically done, but should also be “seen to be done” by the people. The public’s confidence in the impartiality of the judicial process is as important as the results of that process. People need to have confidence that judges have a certain level of detachment from the cases they are hearing, that all sides will be heard fairly and that decisions will be made according to objective principles rather than the subjective views of the Chief Justice. A suo motu notice prevents this.
Instead, it signals that those who hold the same views on an issue as the current chief justice’s pet project will evidently have greater chances of success in the judiciary. During Saqib Nisar’s tenure, it was clear that a person’s views on the dam fund would determine how they would be treated in court. The image of the judiciary as an impartial arbiter was fractured. Former Supreme Court justice Maqbool Baqar said about the power to reconstitute benches: “The practice has also tarnished the public’s perception about the independence of the judiciary.” Rule of law is also about reigning in discretion.
Justice is a system
I am conscious that all these arguments – on democracy, discretion, and impartiality – may be met with the same objection: that Pakistan is not an evolved democracy; the people in parliament are corrupt; our institutions are not independent. That in such an environment, the court has no choice but to intervene to protect the country. That extraordinary circumstances require extraordinary measures It is no wonder, thus, that suo motu cases which are tough on politicians are celebrated.
It is an argument so familiar to Pakistan’s history that at this point it has lost all meaning. It justified military rule and was the premise of Justice Munir’s use of the doctrine of necessity. To continue to insist on its worth is a failure to learn from history.
That all politicians are corrupt is another cliché. Yes, corruption exists in Pakistan, but one-off decisions cannot solve the institutional problem. Whatever our opinion on politicians, we must respect that they were voted into power by millions of Pakistanis. To disregard them is to disregard democracy.
Of course, some suo motu decisions have given us good results. However, focusing on singular decisions is myopic. Justice is not simply about results. It is a system. Focusing on results creates little distinction between justice and the rule of the mob. Mobs don’t make a just process. An obsession with results ends up turning our perception of the fundamentals of the rule of law into unnecessary obstacles rather than necessary foundations.
When we forget about systems, we never fix the problems that plague them. We create perverse incentives instead. Because the justice system is broken, everyone wants a suo motu on their case because they recognise that it will be heard on an expedited basis. After all, it is the ability to generate enough buzz and headlines that will get your case heard by the Chief Justice – extra points if it can help him build a legacy. Meanwhile, the decades-old property dispute of some poor individual is left navigating the maze of trial and appellate courts for decades.
Law as Integrity
From here we need to chart a path forward. We need a deeper conversation on the relevance of suo motu powers and the merits of judicial restraint. Judicial restraint should not be caricatured as a theory preventing the evolution of law and precedent. Instead, it should be viewed as a principled stand in favour of the separation of powers.
Given how anomalous the suo motu power is in a democracy, the ideal solution would be to eliminate it altogether while framing clear guidelines on the exercise of the court’s jurisdiction when a petition is filed under Article 184 (3). The parliament should enact a framework on what the term ‘public importance’ can mean.
Alternatively, if the power is to be retained, we could have a more robust and consultative framework for its exercise. For example, to modify proposals given in Pakistan’s Senate by Farooq Naek in January 2022, and those by Justice Mansoor Ali Shah in his note in the recent provincial election case, the decision regarding whether a case merits suo motu notice should be taken by a panel of five judges in the Supreme Court rather than just the Chief Justice. This panel of judges could be a mix of senior and junior judges.
If the panel decides to take suo motu notice, they should then refer the matter to be heard by a separate bench of judges – to ensure impartiality.
These decisions should be appealable (currently suo motu decisions can only be challenged in review before the same bench of judges). Mistakes happen after all, even by the Supreme Court.
But none of this will matter unless we have a broader political consensus that the Supreme Court should not involve itself in cases that relate to economic and social policy that are best left to elected representatives. Pakistan needs fewer unelected institutions wielding power, given the country’s history.
To have integrity, the law must function as a body of coherent decisions. And this stability cannot be achieved if the law changes with the Chief Justice.
For far too long, our rule of law has been juggled from the tenure of one Chief Justice to another. It is time we return this rule to whom it belongs: the separate institutions of the government, who are required to exercise this rule transparently.
The writer is a lawyer and former member of the visiting faculty at the Lahore University of Management Sciences. He did his LL.M. from New York University where he was a Hauser Global Scholar. He is currently based in Singapore.
