Supreme Court Archives - Dissent Today

Qazi Faez Isa, Strong Proponent Of Rule Of Law, Takes Oath As Pakistan’s Chief Justice

News Desk — Sun, 17 Sep 2023 06:53:53 +0000

Justice Qazi Faez Isa, who is known for his bold judgements and clear views about upholding the rule of law, has taken oath as Pakistan’s new Chief Justice. President Arif Alvi, who had in 2019 filed a presidential reference against him before the Supreme Judicial Council (SJC), administered oath to the new chief justice.

The presidential reference filed by Alvi, over allegations of undeclared properties of the judge and his wife, was later quashed by the Supreme Court, that declared it a case of mala fide intent.

“Although the preparation and framing of the reference against the petitioner [Justice Isa] is not patently motivated with malice in fact, the scale and degree of the illegalities are such that the reference is deemed to be tainted with mala fide in law,” the apex court had said in its order.

While the reference was quashed, the court had ordered the Federal Board of Revenue (FBR) to look into the judge’s tax returns. Justice Isa had then filed a petition seeking review of the decision, and during its hearing, he stated that the then government of Pakistan Tehreek-e-Insaf (PTI) wanted to remove him over his verdict in the Faizabad protest case.

In the Faizabad protest judgement issued in 2018, Justice Isa had questioned the role of intelligence agencies including Inter Services Intelligence (ISI) in encouraging extremist group Tehreek-e-Labbaik Pakistan (TLP) for its violent protest in Islamabad against the then government.

He had criticised the Director General Rangers’ act of handing out cash to workers of the TLP after their violent protest, that had continued for over 20 days and brought the capital to a standstill, ended following an agreement with the government.

“TLP’s dharna participants received cash handouts from men in uniform, the perception of their involvement gained traction.

The Director General of the Inter-Services Public Relations (ISPR) has also taken to commenting on political matters: “History will prove the 2018 general elections were transparent.”

The armed forces, and all agencies manned by the personnel of the armed forces, including ISI, Military Intelligence (MI) and ISPR serve Pakistan, and thus all its citizens.

They must never be perceived to support a particular political party, faction or politician.

If any personnel of the armed forces indulges in any form of politicking or tries to manipulate the media he undermines the integrity and professionalism of the armed forces,” Justice Isa had noted in the Faizabad judgement.

News Desk

dissenttoday.net

The post Qazi Faez Isa, Strong Proponent Of Rule Of Law, Takes Oath As Pakistan’s Chief Justice appeared first on Dissent Today.

Chief Justice Has Put Other SC Judges Into ‘Unnecessary Dilemma’: Justice Isa

News Desk — Sat, 24 Jun 2023 06:50:12 +0000

Chief Justice-designate Qazi Faez Isa has said that constitutional institutions such as the Supreme Court should not operate on the whims of an individual, adding that Chief Justice Umar Ata Bandial has put other judges of the Supreme Court into “unnecessary dilemma”.

Justice Isa expressed these views in a 30-page statement issued in Urdu. He attached with the statement earlier notes and orders in this regard. This is the same statement that the judge read out in the open court on Thursday when he stated that the nine-judge bench, in which he was included, was not a properly constituted court. Following the statement, Justice Isa had announced that he would not sit on the bench, but he was not recusing.

Referring to his May 19 appointment as head of the three-member judicial commission to probe audio leaks, he noted that a bench of the Supreme Court, headed by the chief justice, had halted the proceedings of this commission. The case was again taken up on May 31, but later postponed for an indefinite period.

According to Justice Isa, he had been put into a quandary from which he could only escape when the petitions against the Supreme Court Practice and Procedure law were resolved, or at least the stay granted against the enforcement of the law was removed.

News Desk

dissenttoday.net

The post Chief Justice Has Put Other SC Judges Into ‘Unnecessary Dilemma’: Justice Isa appeared first on Dissent Today.

Lashkar-e-Jhangvi And Taliban Planning To Target Shias, ECP Tells SC

News Desk — Wed, 19 Apr 2023 07:45:47 +0000

The Election Commission of Pakistan (ECP) has submitted a report to Supreme Court, saying that terror outfits Lashkr-e-Jhangvi (LeJ) and Tehreek-e-Taliban Pakistan (TTP) are planning to target the Shia community which is why holding Punjab Assembly elections on May 14 might lead to “anarchy”.

The ECP warned of “anarchy and chaos” if the polls for the provincial assemblies are not held the same day, saying that the electoral watchdog was informed by the Sector Commander Inter-Services Intelligence Punjab on March 10th that the militant outfits are aiming to target Shia community “which in turn will accentuate sectarian strife”. It also added that the “hostile intelligence agencies are working strenuously to destabilise the economy and political environment in the country”.

The electoral watchdog told the Supreme Court that “elections on two different dates” could potentially expose people to “terrorism twice”.

The ECP said that in a meeting with Acting Secretary/ Special Secretary (Interior), the electoral watchdog was told that there is a “serious threat” to politicians as various terrorist organisations are “colluding to destabilise the country”.

The report stated that the Joint Director General IB Punjab told the ECP that RAW “will strive to destabilise the country in the current political scenario by targeting political figures. There are potential threats to Pakistan Tehreek-e-Insaf, Pakistan Muslim League-Nawaz, and Pakistan People’s Party”.

Meanwhile, the Additional Secretary Defence told the electoral watchdog that since January there have been 252 incidents of terrorism, adding that there have been 3,600 major operations in Punjab. The secretary also said that 30 per cent of the Pakistan Army is deployed on the border with Afghanistan and 20 per cent on the border with India. “Therefore 50 per cent of the Pakistan Army is perpetually deployed and pre occupied with this sensitive assignment.”

“It is re-iterated that the poll date of 8th October, 2023 as announced earlier is in keeping with the ground realities and it is also believed that if this itinerary is not followed, it may lead to anarchy and chaos in our country, the responsibility of which ECP cannot withstand,” it warned.

News Desk

dissenttoday.net

The post Lashkar-e-Jhangvi And Taliban Planning To Target Shias, ECP Tells SC appeared first on Dissent Today.

Supreme Court Of Pakistan Is Not Just The Chief Justice: Why SC Bill Is The Need Of The Hour

Osama Khalil — Mon, 17 Apr 2023 11:35:11 +0000

On March 1, a five-member bench headed by Chief Justice of Pakistan Umar Ata Bandial ordered the Election Commission of Pakistan (ECP) to hold elections for the provincial assemblies of Punjab and Khyber Pakhtunkhwa within 90 days. The Supreme Court had announced a split verdict of 3-2 with judges within the bench raising concerns over the chief justice of Pakistan’s discretionary powers. This controversy has led to the introduction of the Supreme Court (Practice & Procedure) Act, 2023, passed by the Parliament, which has elicited support from certain quarters, while drawing criticism from others.

The bill in question includes provisions for the constitution of benches, exercise of original jurisdiction, interpretation of the Constitution, and the right to appeal. The Act mandates that every cause, appeal, or matter before the Supreme Court shall be heard and disposed of by a bench constituted by the Committee comprising the Chief Justice of Pakistan and the two most senior judges, in order of seniority. It also establishes a process for appeal, which shall lie within thirty days from an order of a bench of the Supreme Court exercising jurisdiction under clause (3) of Article 184 of the Constitution to a larger bench of the Supreme Court, and such appeal shall be fixed for hearing within a period not exceeding fourteen days.

According to the new Act, whenever a cause, appeal, or matter is brought before the Supreme Court, the chief justice of Pakistan and the two most senior judges will decide as to which judges will be assigned to hear and dispose of the case. The order of seniority will be followed in selecting the judges for the said committee, with the most senior judges given priority. It outlines the process by which benches are to be formed in the Supreme Court of Pakistan to hear and decide cases, ensuring that the most senior judges are given a prominent role in the process.

The primary object of the Supreme Court (Practice & Procedure) Act, 2023 is the realignment of powers and authority within the SC, and not curtailing its jurisdiction. The apex court is not just composed of the Chief Justice, but also other judges who could potentially take action on cases.

Undoubtedly, Article 191 grants the Supreme Court the authority to make rules regulating the practice and procedure of the court, but this power is subject to the limitations imposed by the Constitution and other laws. One such limitation is that the Parliament, which is responsible for making laws, can create rules regarding the constitution of benches in SC through legislation. This means that the Parliament can pass a law that specifies how the benches in the court should be constituted, which would then become a part of the legal framework governing the functioning of the court.

The Act further specifies that before any matter invoking the exercise of the Supreme Court’s original jurisdiction under Article 184(3) can be taken up by the court, it must first be placed before the Committee for examination. If the Committee determines that question of public importance with reference to fundamental rights specified in the Constitution is involved, it will then constitute a bench of not less than three judges for adjudication of the matter which may also include members of the committee. In addition, the Act also recognizes that matters involving the interpretation of constitutional provisions are particularly complex and important. Therefore, the requirement is to constitute a bench of not less than five judges by the abovementioned committee in order to ensure that these cases are heard by a diverse and experienced group of judges, who can provide a thoughtful and nuanced analysis of the constitutional issues involved. Furthermore, section 5 of the Act is related to appeal which indicates the procedure for filing an appeal within thirty days to a larger bench of the Supreme Court against the order passed under article 184(3) of the Constitution. The appeal must be scheduled for a hearing within a period of not more than fourteen days. An individual who has been adversely affected by an order issued under clause (3) of Article 184 of the Constitution, prior to the enactment of this act, also has the right to appeal. However, such an appeal must be filed within thirty days of the commencement of this act.

Entry 55 of the Fourth Schedule, Part 1 of the constitution of Pakistan specifies that the Parliament of Pakistan has the power to make laws regarding the jurisdiction and powers of all courts, except the Supreme Court, on certain matters listed in the Constitution. However, any law made by the Parliament to enlarge the jurisdiction or confer supplemental powers on the Supreme Court must be authorised by the Constitution. Nevertheless, it is imperative to align it with Clause 2 of Article 175 of the Constitution which stipulates that no court is allowed to exercise its powers and authority beyond what has been explicitly granted to it by either the Constitution or any law passed by the Parliament. Consequently, although Constitution limits the legislature’s power over the Supreme Court in certain cases, it also allows the legislature to determine the cases that fall under the Supreme Court’s jurisdiction.

In India, a Constitution Bench of the Supreme Court is required to decide on matters of law that require interpretation of the Constitution or involve significant legal questions. Such a Bench must involve a minimum of five judges. A Constitution Bench can also be constituted when two or three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, or when a later three-judge bench doubts the correctness of a judgment delivered by a former bench and decides to refer the matter to a larger bench for reconsideration.

The primary object of the Act is the realignment of powers and authority within the SC and not curtailing its jurisdiction as the Supreme Court in Pakistan is not just composed of the Chief Justice, but also other judges who could potentially take action on cases. By involving more than one judge in important cases, the law would ensure that decisions are made through a collaborative effort and not the sole prerogative of a single judge. The creation of a judges’ committee to decide which judges would hear the case would provide a structured and impartial process for selection. Besides, the right to appeal against the decision of a single judge to a larger bench would ensure that the decision-making process is fair and transparent. Consequently, it is beneficial in promoting transparency, fairness, and collaboration in the judicial system.

Osama Khalil

The writer is a legal intern based in Peshawar and holds a BS-Law degree from Edwardes College, Peshawar.

The post Supreme Court Of Pakistan Is Not Just The Chief Justice: Why SC Bill Is The Need Of The Hour appeared first on Dissent Today.

Legislatue Fights Back: Another Bill Regulating Suo Motu Litigations Passed By National Assembly

News Desk — Sat, 15 Apr 2023 10:55:42 +0000

In response to the Supreme Court’s decision to halt the implementation of a bill limiting the Chief Justice of Pakistan’s (CJP) discretionary powers, the Parliament has fought back with another bill regulating suo motu litigation.

The government had convened a National Assembly sitting ahead of schedule and approved a bill regulating suo motu litigations and passed two resolutions targeting the judiciary for “exceeding its institutional mandate”.

Amid institutional wrangling, an eight-member larger bench of the Supreme Court had preemptively barred the implementation of the Supreme Court (Practice and Procedure) Bill 2023 that limits the Chief Justice of Pakistan’s discretionary powers.

The move was widely criticised by the coalition government, as well as the legal fraternity.

In response, the government convened a National Assembly sitting and passed a bill, titled the Supreme Court (Review of Judgements and Orders) Bill, 2023.

Tabled by Pakistan Muslim League-Nawaz’s Shaza Fatima Khawaja, the bill was aimed at “facilitating and strengthening the Supreme Court in exercising its powers to review its judgements and orders”.

If the bill is passed, it will give the right of appeal to the aggrieved party in suo motu cases. The review petition would be heard by a larger bench than the original one, Express Tribune reported.

According to the bill, any individual who files a review petition can be allowed to hire the services of a lawyer of their choice rather than the current policy of utilising the same lawyer who had argued the initial case.

News Desk

dissenttoday.net

The post Legislatue Fights Back: Another Bill Regulating Suo Motu Litigations Passed By National Assembly appeared first on Dissent Today.

It’s Time For Chief Justice Bandial To Step Down

Yousuf Nazar — Fri, 14 Apr 2023 09:05:22 +0000

It is now Pakistan’s parliament versus eight Supreme Court (SC) judges in the worst and most bitter confrontation between the two branches of the government the country has ever experienced. Neither is willing to blink in a high-stake power struggle which may lead to a complete breakdown and could even see Pakistan return to military rule in some form.

At the centre of this conflict is Chief Justice Umar Ata Bandial. In an unprecedented and controversial move, the Supreme Court’s eight judges on Thursday barred the government from implementing a bill seeking to curtail the chief justice of Pakistan’s powers once it becomes a law. Earlier on Thursday, leaders of the ruling coalition opposed the formation of the bench, calling the move “premature” and calling for the bench’s dissolution in light of the ongoing legislative process.

In a tit-for-tat move, the SC bench rushed to block a bill that has not yet become law. This SC order is in violation of a previous SC decision of 1989 when an 11-member bench of the apex court had held in Federation of Pakistan vs Aitzaz Ahsan (PLD 1989 Supreme Court 61) that, “It is a well-settled principle of constitutional interpretation that until a law is finally held to be ultra vires for any reason, it should have its normal operation.”

Pakistan’s parliament on Thursday ruled against providing funds for provincial assemblies’ snap polls ordered by the Supreme Court, in a further escalation of the conflict between the CJ and government amid months of political and economic turmoil, with the country nearing default. The CJ had already summoned government officials on Friday to seek their response on the funds for the provincial assembly polls, warning that non-compliance would have consequences. It is clear that ruling parties want to avoid the elections because they fear Imran Khan will win.

Thursday’s developments followed the SC’s April 4 order to hold elections for the dissolved Punjab Assembly on May 14. The fact that the SC didn’t order a date to hold elections for the KP assembly has raised eyebrows with some observers questioning why special attention is being given to the largest province – the centre of the power struggle – if it is just a constitutional or legal matter and no order was passed for the KP assembly.

KP is a periphery and nobody is bothered about enforcing 90 days limit for election there nor the SC is ready to hear a petition against the Action in Aid..Regulation for the last 4 years as CJ isn’t forming a bench for the HR case. SC is an arena for the elites power politics. https://t.co/socLMYYAFA

— Afrasiab Khattak (@a_siab) April 12, 2023

The SC had directed the federal government to release the election funds to the ECP by April 10 for elections to both assemblies. The court’s verdict followed a petition filed by the PTI, which had challenged the Election Commission of Pakistan’s (ECP) decision to delay the Punjab polls from April 30 to October 8 after the government refused to give funds to conduct the exercise citing the economic crisis. The PTI in January decided to dissolve the Punjab and Khyber Pakhtunkhwa (KP) provincial assemblies it controlled in a bid to force early national elections.

Pakistan faces an existential crisis and Chief Justice Bandial has become the centre of the crisis. Therefore, if Pakistan is to have any hope of coming out of this impasse, the first step will have to be his resignation to end this confrontation.

The chief justice’s conduct has come under serious criticism by other senior judges of the court but it seems to have strengthened his resolve to run his “one-man show” as described by Justice Mansoor Ali Shah and Jamal Khan Mandokhail in their judgment of March 1, 2023. The two judges had said, “The immediate danger of the imperial Supreme Court, writes Professor Lemley, is that it will damage the constitutional system by usurping the power that doesn’t belong to it; but the longer-term danger may be the opposite. The Court, by turning it in the minds of the public into just another political institution, may ultimately undermine its legitimacy and credibility of its judgments. We must ensure that our Supreme Court does not assume the role of an imperial Supreme Court with its judicial decisions restricting the power of the Parliament, the Government and the provincial High Courts.”

The division among the Supreme Court judges is yet another sign of Pakistan’s failure as a state. Judiciary was perhaps never independent as historically, it acted as an appendage of the establishment, but kept a façade of respectability. Cracks within the SC are perhaps a reflection of divisions within the establishment. Partisan observers can get excited but the fact is that all parties have violated the Constitution at one point or another. The military establishment and the political parties have not always played by the book throughout Pakistan’s turbulent history. However, the SC judges kept at least a façade of proprietary and neutrality although they were involved in the judicial murder of an elected prime minister – Zulfikar Ali Bhutto – and in the removal of other elected prime ministers through clandestine machinations of the deep state.

It is not the first time a bench under the chief justice has tried to usurp a power it does not have under the Constitution. The court has exercised the power to take suo motu notice in a blatant violation of the constitution through politically motivated judicial activism, particularly during the last 16 years. The suo motu power, as practised by the court, has no basis in the text of the Constitution. The court didn’t even mention this power when framing the Supreme Court Rules in 1980.

The conflict is rooted in the political tug-of-war between the parties of the ruling coalition and Imran Khan who has been locked in a no holds barred power struggle with his opposition. He is 70 and he knows this is his last chance to get back into power. He is gambling on his popular support to go to any extent hoping that the military’s top brass will eventually support him. However, he has become a deeply polarising figure and may have made governing Pakistan an almost impossible task. The military has mostly exercised restraint. Going by Pakistan’s history, any other leader would have been in jail by now.

The risk of complete collapse has increased with the open division among the judges of the Supreme Court. Unless Imran Khan makes peace with the military establishment, the army generals may be forced to take some extra-constitutional steps, although they would want to avoid it due to Pakistan’s dire economic situation. However, all bets will be off if Pakistan defaults, a scenario which appears to be quite likely as an agreement with the IMF is unlikely to be concluded anytime soon.

The standoff between the parliament and the Supreme Court is more than a constitutional crisis. The government doesn’t have a clear mandate but its grievances – during the recent history – against the military and the judiciary go back to July 2017 when the former army chief General (retired) Qamar Javed Bajwa and a five-member supreme court bench allegedly acted in concert to remove former prime minister Nawaz Sharif on flimsy charges that had little to do with his alleged corruption. Even Imran Khan recently held Genera Bajwa responsible for Nawaz Sharif’s disqualification.

Given the dark past of Pakistan’s superior courts who willingly condoned various unconstitutional and illegal actions of military rulers, the moral authority of the country’s judiciary is weak, to say the least. There is little doubt that Imran Khan was brought into power through conspiracies engineered by General Bajwa, with the judiciary’s help. Bajwa was happy to see Imran removed from office after the gulf between the two became too wide following the row between the two over the appointment of the chief of the country’s premier intelligence agency, the ISI. The PDM government has been working closely with the military establishment and has no intention to hold elections this year under one pretext or the other. Hence, it is preposterous for any of the major actors to claim a high moral ground in the present conflict.

Once Imran Khan was voted out through a no-confidence motion in April 2022, the ruling coalition of the Pakistan Democratic Movement (PDM) and the Pakistan Peoples Party moved to oust the PTI’s Punjab government. Following a vote of no-confidence, PMLN’s Hamza Shahbaz was elected as the chief minister with the help of the votes of 24 PTI dissident legislators.

Following a presidential reference seeking interpretation of Article 63-A of the constitution, a five-member SC bench, headed by the Chief Justice, ruled by a majority of 3 to 2, that dissident members’ votes should not be counted. The dissenting judges Jamal Khan Mandokhail and Mazhar Alam Khan Miankhel disagreed with the verdict. In the minority opinion, they stated that “any further interpretation of Article 63-A, in our view, would amount to re-writing or reading into the Constitution and will also affect the other provisions of Constitution, which has not even been asked by the president”.

However, even in the context of the judiciary’s dark history, the chief justice’s conduct has been highly unbecoming, particularly the way he formed benches by repeatedly picking his favourites – ignoring senior judges — by abusing the unconstitutional power of suo motu notices, and worst by rewriting the constitution in the case of presidential reference on Article 63(A).

In short, the state of Pakistan is in a deep mess and faces an existential crisis and the CJ has become the centre of the crisis. In the process, he has greatly damaged his credibility and that of his institution. Now no matter what he does is unlikely to be respected by not just the ruling coalition but also by his fellow judges and members of the bar as well as a large segment of the population.

Therefore, if Pakistan is to have any hope of coming out of this impasse, the first step will have to be his resignation to end this confrontation, because as they say, Caesar’s wife must be above suspicion. The phrase means that those holding important public positions should avoid even the appearance of wrongdoing. Their behaviour must always be “above suspicion”.

At the same time, the government should invite and hold talks with the PTI to set a date for elections because a political solution through dialogue is the only way out of the crisis.

Yousuf Nazar

The writer is former Citigroup Head of Emerging Market Investments, author and columnist. He worked with Benazir Bhutto during the Movement for the Restoration of Democracy during 1977-81 as a student union leader.

The post It’s Time For Chief Justice Bandial To Step Down appeared first on Dissent Today.

‘Freedom Of Expression Also Applies To Unfavourable Ideas’: SC Tells PEMRA To Stop Declaring Arts ‘Vulgar’

News Desk — Thu, 13 Apr 2023 07:06:54 +0000

The Supreme Court has said that the right to freedom of expression and information also applies to unfavourable ideas while asking Pakistan Electronic Media Regulatory Authority (PEMRA) not to take action against media houses for “obscene” and “vulgar” content without consulting the council of complaints.

A two-judge bench consisting of Justice Syed Mansoor Ali Shah and Justice Ayesha A Malik had taken up the case filed by the media regulatory watchdog against ARY Communications Pvt Ltd, related to the broadcast of the drama serial ‘Jalan’, Dawn reported.

PEMRA had banned the broadcast of the drama serial due to complaints over its “objectionable” content in September 2020. However, the channel had approached the Sindh High Court (SHC) against the prohibition order, saying the media watchdog did not consult the council of complaints as mandated under Section 26 of the PEMRA ordinance. After the high court had allowed the appeal, PEMRA approached the apex court.

The Supreme Court declined the PEMRA’s petition, saying that PEMRA is bound to issue prohibition orders after consulting with the council of complaints.

To issue a prohibition order, the PEMRA ordinance Section 26 states that “the federal government should establish Councils of Complaints at Islamabad, the Provincial capitals and also at such other places as the Federal Government may determine. Council shall receive and review complaints made by persons or organisations from the general public against any aspects of programmes broadcast or distributed by a station
established through a licence issued by the Authority and render opinions on such complaints and each council shall consist of a Chairperson and five members being citizens of eminence from the general public at least two of whom shall be women.”

News Desk

dissenttoday.net

The post ‘Freedom Of Expression Also Applies To Unfavourable Ideas’: SC Tells PEMRA To Stop Declaring Arts ‘Vulgar’ appeared first on Dissent Today.

Justice Isa Says Was Told There Will Be No Political Speeches At Constitution’s Golden Jubilee Celebration

News Desk — Tue, 11 Apr 2023 14:17:42 +0000

In a statement released a day after his presence in a convention held at Parliament House to mark the Golden Jubilee of the Constitution of Pakistan, senior puisne judge of the Supreme Court Justice Qazi Faez Isa has said that he was told there will be no political speeches on the occasion.

Justice Isa’s presence in the National Assembly was criticised by many members of the legal fraternity, as well as politicians as he is slated to become the next chief justice of Pakistan in September.

In a notification issued today, the senior judge said: “The Golden Jubilee of the Constitution is a celebration of all citizens; it is not the exclusive domain of any particular party or institution.”

“The significance of the Constitution must be impressed upon all, and this should be done continuously,” he added.

The top court judge was also criticized for being seated in the front row along with the politicians belonging to the ruling coalition.

Addressing this criticism, he said that he did not choose to sit there but he was shown respect as a senior member of the judiciary and offered a seat at the centre.

Justice Isa reiterated that he was assured no political speeches would be made during the convention, so he attended the session to “show solidarity with the Constitution”. He added that prior to the session, he had declined to make a speech but when political speeches were made, he had to clarify his stance.

“I requested to speak to correct any misconceptions that may arise, and I did so,” he said.

News Desk

dissenttoday.net

The post Justice Isa Says Was Told There Will Be No Political Speeches At Constitution’s Golden Jubilee Celebration appeared first on Dissent Today.

MNA Mohsin Dawar’s Amendment to SC Suo Motu Bill Will Give Former PMs Nawaz, Gilani Right To Appeal

News Desk — Thu, 30 Mar 2023 08:08:21 +0000

North Waziristan Member National Assembly Mohsin Dawar’s amendment to the unanimously-passed National Assembly bill limiting the chief justice of Pakistan’s power to take a suo motu notice will provide the right to appeal to those convicted under such cases, including former prime ministers Nawaz Sharif and Yusuf Raza Gilani.

While presenting the amendment, Dawar said this would give the affectees of Karachi’s Nasla Tower the right to appeal.

On suo motu notice taken under Article 184 (3) of the constitution in 2021, the Supreme Court had ordered the demolition of the Nasla Tower situated on the main Shahrah-e-Faisal in Karachi with at least 43 apartments that were occupied by residents who were living there for several years.

If the bill is passed today by Senate and approved by the president, it will also pave the way for many political leaders to contest verdicts in the cases against them under Article 184 (3) of the constitution. Former prime minister Nawaz Sharif, who was disqualified under Article 62(F) of the Constitution in 2017, former prime minister belonging to Pakistan People’s Party (PPP) Yusuf Raza Gilani, estranged Pakistan Tehreek-e-Insaf (PTI) leader Jehangir Khan Tareen could file an appeal against their disqualification verdicts “within 30 days of the commencement of this Act”.

The NA passed the Supreme Court (Practice and Procedure) Bill, 2023, that limits the discretionary powers of the chief justice of Pakistan (CJP) to take suo motu notice under Article 184(3) of the Constitution yesterday.

PML-N MNA Bashir Mehmood Virk presented the bill while North Waziristan MNA Mohsin Dawar presented the amendment to the bill.

Social media users lauded the bill.

Legal analyst Reema Omer said the changes proposed by the bill are “particularly significant”.

She also dismissed the claims that the bill is an “attack on the independence of the judiciary”.

Please read the Supreme Court (Practice and Procedure) Bill, 2023 for yourself and see if it really is an assault on judicial independence as some people are claiming?

Three changes proposed by the bill are particularly significant: pic.twitter.com/p4F6dcpOKZ

— Reema Omer (@reema_omer) March 29, 2023

Reema Omer elaborated on the three important aspects of the bill.

She said according to the bill a committee comprising the CJP and two senior-most judges of the SC will constitute benches to hear all matters before the Supreme Court and the committee will make decisions by majority.

The same committee will also decide whether SC should exercise its original jurisdiction under Art 184(3) and such cases will be heard by a bench comprising a minimum of three judges.

Currently, the CJP alone has discretionary powers over all such matters.

“Currently, there is no right to appeal such SC judgments – there is only an option to apply for a review on limited and narrow grounds before the same bench. The bill proposes an appeal before a larger bench of the SC than the bench that originally decided the case,” she added.

Another social media user said that all bars have been demanding these much-needed amendments for at least a decade now.

These are excellent and much needed amendments and something all bars have been demanding for at least a decade. Everyone should stand behind them. https://t.co/zfJjItEyL1

— Salahuddin Ahmed (@SalAhmedPK) March 28, 2023

News Desk

dissenttoday.net

The post MNA Mohsin Dawar’s Amendment to SC Suo Motu Bill Will Give Former PMs Nawaz, Gilani Right To Appeal appeared first on Dissent Today.

Here’s How Chief Justice’s Suo Motu Powers Undermine Democracy

Hassan A Niazi — Wed, 29 Mar 2023 06:37:02 +0000

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.

Hassan A Niazi

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.

The post Here’s How Chief Justice’s Suo Motu Powers Undermine Democracy appeared first on Dissent Today.