Shahmir Kazi is disappointed at an Ongoing judicial crisis
The executive-ongoing judicial crisis standoff was feared to drag on and it did further polarise the polity and raise tempers. Though the real battled fought currently is essentially political but it is being contested within judicial premises badly affecting national fabric almost irretrievably. Of late there appears that some rationality has started to emerge but no one can predict that how long it will take to crystallise. The segments involved in this conflict have willingly and completely ignored that it has now raised questions about the moral authority and legitimacy of the Supreme Court along with the parliament’s authority to legislate on the court’s jurisdiction and the need for curtailing the country’s top judge’s absolute and monarchical position. Most controversially the arbitrarily appointed eight member bench took an anticipatory injunction preventing the Supreme Court (Practice and Procedure) Bill 2023 passed by the parliament underlining the worrying fact that in defiance of the right of the parliament to make laws the chief justice is insisting on preserving his power and authority. Intriguingly during the course of this activity the chief justice also upended the logic of keeping the bench even so that to let a split decision take place. Another oddity noticed was that seven judges were excluded from the bench hearing such a crucial matter including the senior pusine judge.
The prevailing tug-of-war between the three organs of the state indicates that the chances of resolution of the crisis are not only remote but could drag on indefinitely. It is has become more than obvious that the executive is dumbfounded and does not know what to do as both the legislature and the judiciary are unwilling to step back. Most problematically the dominant establishment is also unsure of itself and factions within in it are equally indecisive. This impasse has started to negatively affect the body politic of Pakistan as a divided governance mechanism cannot tackle the monstrous problems facing the country particularly the deteriorating economic situation. Though it was recognised initially that the Supreme Court could not turn a blind eye to the flouting of the Constitution as was apparently observed when the executive tried to play with holding of elections but the manner in which the judiciary approached the challenge gave the government space to challenge its rulings simply because it could argue that they lacked endorsement from within. Although the schism witnessed in the ranks of the members of the superior judiciary is not surprising in wake of the process of unraveling socio-political matrix of the country is going through but the top judge chose to ignore it giving rise to conjecturing that he was trying to ward off this crisis by diverting attention towards the political situation.
Whatever the outcome of this situation, one cannot deny the fact that the parliamentary legislation is a significant development in the constitutional and legal framework of the apex judiciary and one cannot hesitate to point out that the higher judiciary brought on this difficulty on itself by exhibiting a self-serving tendency smacking of hubris. The crux of this delegation is to limit the CJP’s almost absolute administrative powers including the power to constitute benches as well as fix and transfer cases. In this context the bill sought to transfer these powers to a three-member committee, comprising the CJP and the two senior-most judges of the SC that would also be mandated to decide whether or not to take up a matter on suo motu that currently is the exclusive prerogative of the chief justice. The legislation also includes the right to file an appeal within 30 days of a judgment in the case, besides mandating that any case involving constitutional interpretation will not have a bench of fewer than five judges. It is pointed out that one of the consequences if the law were to come into effect would be that Nawaz Sharif and other parliamentarians, disqualified by the Supreme Court under its original jurisdiction, would get the right to appeal against their disqualification.
It is worthwhile to mention that many circles have been demanding the reappraisal and consequent regulation of the powers of the CJP as it is often pointed out that these powers are almost arbitrary devoid of any proper checks and balances and come to fore as one of the remaining vestiges of colonial governance. The issue got serious when in recent days the formation of benches and fixation of cases has become a particularly contentious issue, with allegations of political interference in the process. Added to this controversy was the issue of holding elections to Punjab and KP assemblies as the coalition government alleging that the opposition was trying to influence the judiciary to gain an advantage in the elections and there appears to be some grain of truth in such perception. It is open to question however that if a section of judiciary was being partial in this respect though it may not be apt to be judgmental about the matter as it could be very difficult to pin down such allegation with any degree of certainty.
It is a matter of fact that the history of governance in Pakistan is full of tensions and misunderstanding between the organs of state and this canvas also carried the scars of serious conflict between the judiciary and the parliament on one side and the executive and the judiciary on the other. The current tussle is the continuation of the outcome of the Lawyers’ movement that provided the judiciary the ability to encroach upon the areas of the parliament and executive. An earlier attempt of the parliament undertaken in 2010 was aimed at bringing modest changes in the procedure for appointment of judges to constitutional courts but the then chief justice and his brother judges threatened to strike down the 18th Amendment unless parliament reconsidered the appointment process and restored the CJP’s dominant role in the appointments. At that time the parliament found no recourse but to back down creating an almost permanent wedge between both the institutions that have come into play this time.
The current crisis has also seen an extra angle added to the power struggle as the parliamentary bill sparked a constitutional debate over the court’s power to grant an anticipatory injunction and stay against a bill that has yet to become law. An overwhelming majority of legal experts the SC’s decision to suspend the bill is a violation of precedents and absolute judicial overreach into the jurisdiction of the legislature. One of the key issues in the debate is the perceived conflict of interest of the CJP as well as that of future chief justices. The bill seeks to limit the CJP’s powers which have been a long-standing demand of the legal fraternity. Moreover, the exclusion of other judges of the Supreme Court from the eight-member bench hearing the petition, besides the CJP’s decision to lead the bench, has raised several eyebrows. It is widely known that the legal fraternity is genuinely perturbed about the propriety of the Chief Justice heading the bench that is mandated to hear the matter challenging his overweening authority and arbitrary conduct that has been witnessed in recent months exacerbating the crisis. TW
Ongoing judicial crisis
Bytheweekendr
Dated
April 26, 2023
Shahmir Kazi is disappointed at an Ongoing judicial crisis
The executive-ongoing judicial crisis standoff was feared to drag on and it did further polarise the polity and raise tempers. Though the real battled fought currently is essentially political but it is being contested within judicial premises badly affecting national fabric almost irretrievably. Of late there appears that some rationality has started to emerge but no one can predict that how long it will take to crystallise. The segments involved in this conflict have willingly and completely ignored that it has now raised questions about the moral authority and legitimacy of the Supreme Court along with the parliament’s authority to legislate on the court’s jurisdiction and the need for curtailing the country’s top judge’s absolute and monarchical position. Most controversially the arbitrarily appointed eight member bench took an anticipatory injunction preventing the Supreme Court (Practice and Procedure) Bill 2023 passed by the parliament underlining the worrying fact that in defiance of the right of the parliament to make laws the chief justice is insisting on preserving his power and authority. Intriguingly during the course of this activity the chief justice also upended the logic of keeping the bench even so that to let a split decision take place. Another oddity noticed was that seven judges were excluded from the bench hearing such a crucial matter including the senior pusine judge.
The prevailing tug-of-war between the three organs of the state indicates that the chances of resolution of the crisis are not only remote but could drag on indefinitely. It is has become more than obvious that the executive is dumbfounded and does not know what to do as both the legislature and the judiciary are unwilling to step back. Most problematically the dominant establishment is also unsure of itself and factions within in it are equally indecisive. This impasse has started to negatively affect the body politic of Pakistan as a divided governance mechanism cannot tackle the monstrous problems facing the country particularly the deteriorating economic situation. Though it was recognised initially that the Supreme Court could not turn a blind eye to the flouting of the Constitution as was apparently observed when the executive tried to play with holding of elections but the manner in which the judiciary approached the challenge gave the government space to challenge its rulings simply because it could argue that they lacked endorsement from within. Although the schism witnessed in the ranks of the members of the superior judiciary is not surprising in wake of the process of unraveling socio-political matrix of the country is going through but the top judge chose to ignore it giving rise to conjecturing that he was trying to ward off this crisis by diverting attention towards the political situation.
Whatever the outcome of this situation, one cannot deny the fact that the parliamentary legislation is a significant development in the constitutional and legal framework of the apex judiciary and one cannot hesitate to point out that the higher judiciary brought on this difficulty on itself by exhibiting a self-serving tendency smacking of hubris. The crux of this delegation is to limit the CJP’s almost absolute administrative powers including the power to constitute benches as well as fix and transfer cases. In this context the bill sought to transfer these powers to a three-member committee, comprising the CJP and the two senior-most judges of the SC that would also be mandated to decide whether or not to take up a matter on suo motu that currently is the exclusive prerogative of the chief justice. The legislation also includes the right to file an appeal within 30 days of a judgment in the case, besides mandating that any case involving constitutional interpretation will not have a bench of fewer than five judges. It is pointed out that one of the consequences if the law were to come into effect would be that Nawaz Sharif and other parliamentarians, disqualified by the Supreme Court under its original jurisdiction, would get the right to appeal against their disqualification.
It is worthwhile to mention that many circles have been demanding the reappraisal and consequent regulation of the powers of the CJP as it is often pointed out that these powers are almost arbitrary devoid of any proper checks and balances and come to fore as one of the remaining vestiges of colonial governance. The issue got serious when in recent days the formation of benches and fixation of cases has become a particularly contentious issue, with allegations of political interference in the process. Added to this controversy was the issue of holding elections to Punjab and KP assemblies as the coalition government alleging that the opposition was trying to influence the judiciary to gain an advantage in the elections and there appears to be some grain of truth in such perception. It is open to question however that if a section of judiciary was being partial in this respect though it may not be apt to be judgmental about the matter as it could be very difficult to pin down such allegation with any degree of certainty.
It is a matter of fact that the history of governance in Pakistan is full of tensions and misunderstanding between the organs of state and this canvas also carried the scars of serious conflict between the judiciary and the parliament on one side and the executive and the judiciary on the other. The current tussle is the continuation of the outcome of the Lawyers’ movement that provided the judiciary the ability to encroach upon the areas of the parliament and executive. An earlier attempt of the parliament undertaken in 2010 was aimed at bringing modest changes in the procedure for appointment of judges to constitutional courts but the then chief justice and his brother judges threatened to strike down the 18th Amendment unless parliament reconsidered the appointment process and restored the CJP’s dominant role in the appointments. At that time the parliament found no recourse but to back down creating an almost permanent wedge between both the institutions that have come into play this time.
The current crisis has also seen an extra angle added to the power struggle as the parliamentary bill sparked a constitutional debate over the court’s power to grant an anticipatory injunction and stay against a bill that has yet to become law. An overwhelming majority of legal experts the SC’s decision to suspend the bill is a violation of precedents and absolute judicial overreach into the jurisdiction of the legislature. One of the key issues in the debate is the perceived conflict of interest of the CJP as well as that of future chief justices. The bill seeks to limit the CJP’s powers which have been a long-standing demand of the legal fraternity. Moreover, the exclusion of other judges of the Supreme Court from the eight-member bench hearing the petition, besides the CJP’s decision to lead the bench, has raised several eyebrows. It is widely known that the legal fraternity is genuinely perturbed about the propriety of the Chief Justice heading the bench that is mandated to hear the matter challenging his overweening authority and arbitrary conduct that has been witnessed in recent months exacerbating the crisis. TW
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