ISLAMABAD: The Supreme Court led by Chief Justice of Pakistan (CJP) Asif Saeed Khosa has taken several steps to ensure transparency in public interest matters. However, it has yet to evolve consensus on regulating its suo motu powers.
CJP Khosa in his first speech on January 17 said either through a full-court meeting or through a judicial exercise an effort shall be made to determine and lay down the scope and parameters of exercise of the original jurisdiction of this court under Article 184(3) of the Constitution.
“And, if deemed appropriate, to carve out the scope of an Intra-Court Appeal in such matters through an appropriate amendment of the Supreme Court Rules or to suitably amend the provisions relating to review jurisdiction so as to enlarge its scope in such cases,” he said.
The first full-court meeting was held on February 6 to deliberate this issue. No SC official was present during the two-hour full-court meeting.
According to the minute of that meeting, it was resolved that “the issue of exercise of jurisdiction under Article 184 (3) of the Constitution was discussed threadbare from all possible angles and it was affirmed that such jurisdiction will be exercised in accordance with the Constitution.”
Senior lawyers believe that there was no consensus among the SC judges to regulate the public interest jurisdiction and giving right of appeal in suo motu cases through amending the SC rules.
CJP Khosa in his speech on the eve of new judicial year on September 11 noted that the scope of this court’s jurisdiction under the said article of the Constitution is a matter of judicial interpretation and a plethora of case-laws already exists on the subject but suo motu initiation of proceedings under that Article is a matter of procedure and the same is yet to be conclusively determined.
He said in one of the full-court meetings held in the last judicial year the judges had discussed different aspects of this issue in some depth and in the next full-court meeting a draft was likely to be presented and discussed proposing a suitable amendment of the relevant part of the Supreme Court Rules, 1980 and determining how a suo motu notice may be taken of a matter by the Court.
“I am confident that the said issue shall be settled soon bringing consistency of practice and eliminating arbitrariness and whimsicality in the matter,” he had said.
Now ten days are left in retirement of CJP Khosa. It is learnt that the outgoing CJP still wants to determine and lay down the scope and parameters for the exercise of the original jurisdiction of the Supreme Court under Article 184(3) of the Constitution.
A senior official revealed to The Express Tribune that Justice Khosa has summoning a full-court meeting on December 12. However, it is not yet clear whether the judges will discuss this issue or not.
The big challenge, however, is going to be evolving consensus among the Supreme Court judges, who have had a different approach in exercising public interest jurisdiction in the past.
It is debatable whether all judges will be unanimous in structuring the chief justice’s discretionary powers in initiating public interest litigation.
Since taking oath as CJP, Justice Khosa has not taken any suo motu notice.
Unlike his predecessors, he did not exercise suo motu power to regulate politics in the country or its financial matters. The country is still struggling due to the judicial interference by his predecessors in commercial deals.
The outgoing CJP also formed benches comprising senior most judges to hear public interest cases for ensuring transparency. Since the Lawyers’ Movement of 2007, different CJP’s have shown different approaches to judicial activism.
In 2009, the superior judiciary led by former CJP Iftikhar Muhammad Chaudhry initiated public interest litigation for enforcement of fundamental rights. Later, CJP Mian Saqib Nisar further reinforced the approach of judicial activism. However, former chief justices – Tassaduq Hussain Jillani, Nasirul Mulk, and Anwar Zaheer Jamali –used suo motu power sparingly.
Approach of future CJPs
Justice Gulzar, who is next in line to become the CJP and will hold the post for over two years, has already initiated proceedings of public interest litigation for removal of encroachments from Karachi city. Senior lawyers believe that era of judicial activism will be resumed during Justice Gulzar’s tenure.
After analyzing past judgments, it can be said that future chief justices have also varying approaches to public interest litigation. Justice Umar Ata Bandial, who is also a future chief justice, has remained part of the bench led by Justice Saqib Nisar, wherein numerous suo motu proceedings were initiated in different public interest matters.
Likewise, he remained part of the bench which exercised quo warranto jurisdiction to examine the eligibility of lawmakers. Recently, he authored judgment to justify the lifetime disqualification of lawmakers under Article 62 (1) (f) of the Constitution.
Justice Bandial had also authored the Rae Hassan Nawaz verdict, wherein a lawmaker was disqualified for non-disclosure of assets on his nomination papers.
Though Justice Qazi Faez Isa objected to the manner in which public interest jurisdiction was exercised by former CJP Nisar, he justified suo motu jurisdiction in the Faizabad dharna case.
In the Sheikh Rashid eligibility case, Justice Isa also raised questions to the exercise of quo warrant jurisdiction, as well as the applicability of Article 62 (1) (f) to examine the qualifications of parliamentarians. The judge in the same case had also recommended a larger bench to adjudicate those legal questions, but Justice Sheikh Azmat and Justice Sajjad Ali Shah did not agree with him.
However, it is fact that Justice Isa is among the few judges who voted for the annulment of the 21st Amendment, which legalised the trial of civilians in military courts.
Justice Ijazul Ahsan, who would follow Justice Isa as the CJP, was also part of the CJP Nisar’s bench.
Justice Ahsan authored several verdicts in public interest matters including the fake accounts case, and reduction of school fees case. Former CJP Nisar had also appointed him as the monitoring judge in the Panama Papers case.
Another future chief justice, Mansoor Ali Shah, remained active as chief justice of the Lahore High Court. However, his focus was on reforming the judicial system. Senior lawyers were divided over what his approach would be in public interest matters.
Justice Muneeb Akhtar, who will be the next CJP after Justice Shah’s retirement, is known as a by-the-book judge. However, he did author the order in a loan write-off case last year.
Justice Akhtar was also part of the four-judge bench which conducted proceedings regarding the construction of dams in the country. Justice Yahya Afridi, the youngest judge on the bench, would become CJP in 2028. He recused himself from hearing a few public interest cases last year.
Legal opinion on suo motu powers
Former additional attorney general Waqar Rana told The Express Tribune that the SC has gained and exercised a constitutional power to protect human rights in overall political scenario of Pakistan, adding that it is essential that this power should be kept intact but used sparingly so that balance of power among the three branches of government – executive, legislative and judiciary – remains intact.
Few months ago, former attorney general for Pakistan Irfan Qadir commenting on this issue said it was very unfortunate that the SC used suo motu powers to regularize politics by applying Article 62 (1) of the Constitution and maintaining good governance in the country, which is not its domain.
“Where it is written in the Constitution or judges’ code of conduct that the apex court will intervene in governance issues due to executive’s failure,” he had questioned.
Qadir had lamented that the court exercising quo warranto jurisdiction had ousted a number of political leaders, judges and civil servants but there is no check on the court’s authority.
He said it was the best time parliament looked into the matter so that trichotomy of power could not be violated further as it was done in the past during the tenure of a few chief justices.
Another lawyer said when the superior judiciary has structured discretionary powers of executive authorities including the prime minister then it must also regulate the CJP’s unfettered powers of suo motu and constitution of benches.
“If the judiciary itself does not regularise the public interest jurisdiction then the parliament may take up the issue, which may become source of tension among institutions,” he added.
Both the Pakistan Muslim League-Nawaz and the Pakistan People’s Party faced tough time due to use of suo motu powers by the apex court and a number of politicians faced disqualification.