Judicial tiff

Dr. Tahseen Mahmood Aslam is concerned about Judicial tiff

The penny Judicial tiff has finally dropped. Though the recent turmoil caused by the executive-judiciary conflict is rated as an extraordinary development yet it was certainly not unexpected. That it was the offshoot of a profound rift within the judiciary was also not surprising as the rift was palpably evident for a considerably long time. The novel angle of this raging controversy is the timing that was quite unexpected as the arbitrary forces had ensured the most influential high jurists that their actions would not elicit adverse reaction in the country but the moment of truth arrived unexpectedly and with a bang. Other surprising aspect of the whole story is the unusual consensus arrived at by the disparate political elements strongly indicating the revulsion harboured by the national representative segments about the time-serving direction the judicial segment was prone to take.

As is usually the case with matters unraveling, internal discords pave the way for widespread breakup of a fabric that too rather loosely organised. Throughout the decades Pakistani judiciary, particularly its upper echelons have tried to maintain their body as a closed-end entity but the method of its organisation is loose enough to prevent it from getting gelled into a strongly-weaved formation. It is therefore not very surprising to witness the schism between the top judges whereby few of their colleagues threw down the gauntlet to the Supreme Court (SC) chief justice in frank terms. Two SC judges Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail spelt out in their 28-page order reservations articulated before by several other judges but never with such clarity.

Both the judges, known to possess independent opinion, expressed reservations about the order about verdict of the court that ruled 3-2 that polls in KP and Punjab must be held within 90 days. The order focused upon two issues and the first applied to SC’s original jurisdiction under Article 184 (3) and the second was that whether it was within its rights to take up the matter in suo motu proceedings. The independent-minded judges actually reflected the widespread feeling within rational circles that the original jurisdiction of the SC is extraordinary in nature required to be exercised with circumspection. They also pointed out to the repetition of application of the related article as Lahore High Court had already decided the matter rendering it inappropriate for the SC to exercise its original jurisdiction. In consequence therefore the two judges held that the suo motu proceedings stood dismissed by a majority of 4-3, counting the two judges who had neither given their decision early in the proceedings and who could not have been excluded from the bench nor their decisions excluded from the final decision unless they had specifically recused themselves.

This order actually caused almost seismic shock in the country as in its content it diametrically opposed to the order issued by the SC on 1 March whose legal standing may now be in doubt. As if it was not enough a jolt, the dissenting judges added a curious part that is even more devastating as it circles back to its opening reference to an imperial Supreme Court where the office of the chief justice is a one-man show. The two judges touched the raw nerve when they emphasised that the unbridled power enjoyed by the CJ authorising him to take suo motu notice is harmful in the longer run. They also took exception to the practice followed by the CJ of constituting special benches of like-minded judges to hear cases that has resulted in lowering the honour and prestige of the SC. There hardly could be a more scathing remark about the conduct of the highest judicial office in the country. In this context it is pointed out that harnessing the collective wisdom of the court in hearing and deciding cases of constitutional significance would certainly have avoided such an outcome as under the present leadership it is seen going against all logic and principles of fairness.

The strong spirit of dissent pervading in the SC has eventually provided an opportunity to the political elements of the country to begin obstructing the growing ingress of the judiciary in political matters. The political representatives quickly gathered together to unilaterally relieve the chief justice’s office of two important discretionary powers: chief justice’s suo motu powers that they think ought to be regulated as it allows him wanton invocation that is required to be prevented; benches formed to hear important cases should be more inclusive. Though the political elements have a strong reason to take measures aimed at preventing the judiciary from impinging upon their space and dictating the course of political activity but the bitter aggression exhibited during the debate in parliament may cause negative reaction in the national mainstream. It would have been more prudent to impress upon the judiciary the need for sorting out their problems by having a debate amongst themselves.

The action taken by the coalition government may suit their needs but the way it was taken left a bitter taste. It was observed that the bill of amendments was pushed into an ongoing session of the National Assembly through a supplementary agenda after its unusually prompt approval by the federal cabinet that was considered quite fishy and should have been avoided to give it a clean look strengthening the government’s position. The haste with which the bill was approved conveyed an impression that the official bench was rather unsure of the continued support by its allies. It also reflected the absence of proper debate about the matter and this shortcoming may come back to haunt the political representatives. The haste has raised questions about the intentions of the government and it is pointed out that it is interested in going beyond simply reforming the practices and procedures of the court.
It is required to be seen that how the legal minds are going to interpret this legislative intervention but one thing appears quite ominous and that is the high level of impending difficulties the SC will confront in future. Though the one-sided actions of the current head of apex judiciary gave an impression of stubborn adherence to the status quo rendering it incapable of taking cognizance of the opinion of the other side but unfortunately no suggestions as to arrive at a middle ground in this matter have so far emerged. In the absence of a satisfactory formula aimed at completely rectifying the current imbalance in the judiciary, this legislative intervention may further exacerbate the already untenable situation. It is commented that if the divisions within the top court remain unresolved then the functioning of the three-member committee proposed under the bill will be anything but smooth and its rocky conduct may complicate matters instead of resolving them.

Many observers are of the view that the internal matter of the SC should have been left to its members to resolve but it was getting quite obvious that the present top-level setup was unwilling to compromise positions taken by it. However, it must be kept in view that a solution worked out from within the institution would have better chances of rectifying the imbalance and that too could have been more sustainable. It is still expected that the head of the institution would finally act in order to restore its unity and credibility and save it from further disruption. TW