Power, discretion and transparency

There is a growing debate that the discretionary powers of the Chief Justice of Pakistan should be structured and regulated to ensure more transparency in the affairs of the Supreme Court. The CJP currently enjoys unfettered discretionary powers to constitute benches, ‘fix’ cases and initiate public interest proceedings under Article 184 (3) of the constitution. Likewise, being Chairman Judicial Commission of Pakistan (JCP) as well as Supreme Judicial Council, the CJP has vast discretionary of the powers in the process regarding judges appointments and their removal under Article 209 of constitution.

Since 2012, the Pakistan Bar Council (PBC) has been demanding that the JCP rules should be amended to end these unfettered powers in the process of the judges appointment. Similarly, there is an absence of mechanism regarding entertaining of complaints against superior court judges. For instance, several complaints of misconduct were filed against former CJP Mian Saqib Nisar during his tenure but none of them were reviewed.

It is also at the sole discretion of the CJP to initiate proceedings against any judge. For example, despite several pending complaints against judges, SJC chose only to start proceedings of misconduct against Justice Qazi Faez Isa forthwith.

For some time now, even top court judges have been raising their voice for the regulation of discretionary powers of the CJP. Building a case against ‘unstructured discretion,’ Justice Qazi Faez Isa – in a letter written to Justice Gulzar Ahmed on February 10 – noted that the Supreme Court often castigates arbitrary exercise of discretion, yet unstructured discretion is exercised during hearings by benches on important constitutional matters.

“If the executive’s transgressions are not checked, and instead benches are reconstituted and judges restrained, the people suffer. To exclude senior judges from benches when important constitutional issues are to be heard neither serves the institution nor the people,” the judge noted in his letter. He said the Supreme Court is the final arbiter of all disputes and the custodian of the constitution. It is tasked to ensure that the executive does not overreach or act contrary to the constitution.

“Incidentally, you (personally) know that [while working] as [a] counsel for twenty-seven years and as chief justice [of] the Balochistan High Court for over five years, constitutional work is what I mostly did.” Justice Isa added that the recurrent issue of unstructured discretionary powers has been left unattended by former CJPs and not taken up at full-court meetings. He also sent a copy of the letter to Justice Maqbool Baqar who is number five in terms of seniority among the Supreme Court judges.

In October 2020, Justice Yahya Afridi – while writing a dissenting note in the Justice Isa case, observed that the apex court should be more careful while exercising its advisory and suo motu jurisdictions because no appeal could be mounted against its judgments and opinions on those matters. “To maintain judicial discipline and to uphold the rule of law, there is an inherent and dire need for judicial introspection; to structure the unfettered discretion of the worthy Chief Justice of the Supreme Court to constitute benches of the Supreme Court to hear and decide cases under Article 184(3), and in particular, suo motu actions, lest the exercise of such jurisdiction may be seen to have been abused,” the note read. However, he observed that passing any definite findings on this crucial matter in the current petition would not only be swaying from the issue at hand but also, on many counts, would be premature, as the matter was already sub judice before the Supreme Court.

The judge noted that the scope and extent of the term ‘matters of public importance,’ as provided under Article 184(3) of the constitution, had been an issue of perennial deliberation of the top court. “The judicial consensus reached is for the same to encompass any issue affecting the legal rights or liabilities of the public or the community by large, and it is not restricted to an individual or a group of individuals, how so large the group might be,” says Justice Afridi.

On the other hand, Justice Umar Ata Bandial and Justice Munib Akhtar in their rulings observed that it is for the CJP – as the "master of the roster" – to determine the composition of a bench “and he may, for like reason, constitute a larger bench for hearing the review petition.”

In another case, both judges held that the CJP is not bound to form a larger bench on the proposal of minority judges’ view. However, Justice Manzoor Ahmad Malik, who retired last week, observed that the term ‘master of roster’ used could not be understood to mean that the chief justice of the country had unfettered discretion regarding constitution of benches. He said that in fact, the discretion vested in the office of the CJ for constitution of benches is to be exercised in a structured manner according to the Supreme Court Rules SCR.

Lawyers believe that when the apex court regulates all functionaries’ discretionary powers then the same should be applied to the CJP’s unfettered powers.

Legal Analyst Reema Omer in her article titled, ‘Allocation of Cases” said that in Pakistan, all Supreme Court judges are equal when carrying out their judicial functions. However, with respect to their administrative role, the chief justice is the ‘first among equals’ and the ‘master of the roster.’ He decides when a case is listed for hearing and the judges who will adjudicate it. His authority in this respect is provided for in Order XI of the Supreme Court Rules, 1980. The court has clarified in judgements that the chief justice has the “sole prerogative to constitute any Bench with any number of Judges to hear any particular case.” Chief justices of high courts have a similar role, she added.

Reema Omer believes that the discretionary power to constitute benches and allocate cases without necessarily applying any objective and predetermined criteria is inconsistent with international standards on the independence and impartiality of the judiciary as well as general principles of the rule of law.

On the eve of farewell reference of Justice Manzoor Ahmed Malik on April 30, Attorney General for Pakistan Khalid Jawed Khan drew the judges’ attention to the original power conferred on the court under Article 184(3) of the constitution. “This power has been exercised by the present court with great caution and most sparingly. For this reason also, this may perhaps be the most opportune moment to consider and provide some objective guidelines and mechanism by your Lordships for its exercise in future so as to obviate the possibility of recurrence of its excessive use, which in hindsight, might have resulted in consequences not wholly beneficial for our jurisprudence as well as the institution,” he said.

The apex court tried to structure the CJP’s powers on judicial as well as administrative side but nothing so far has been finalised. The first full-court meeting was held on February 6, 2019 to deliberate on the issue but no apex court official was present during the two-hour session.

According to the minutes of the 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 were of the view that there was no consensus among the Supreme Court judges to regulate the public interest jurisdiction and giving right of appeal in suo motu cases through amending the Supreme Court rules.

In December 2019, former CJP Asif Saeed Khosa had shared with other apex court judges a draft of proposed amendments in the Supreme Court Rules 1980 to regulate suo motu power, exercised by the CJP to adjudicate public interest matters. According to the draft, the CJP will take suo motu notice on any matter after consulting with two senior most judges. Later the matter will be referred to a bench that will examine the matter on the judicial side.

The bench's decision could be challenged through an Intra-Court Appeal (ICA), which will be heard by a larger bench. However, the fate of former CJ’s draft rules is not known. During tenure of ex CJP Saqib Nisar, the matter was taken up on judicial side to set the parameters of suo motu jurisdiction. The court had issued notice to Supreme Court Bar Association (SCBA) as well as Pakistan Bar Council (PBC). The matter is still pending in the apex court.

Former CJP Asif Saeed Khosa formed larger benches comprising senior most judges to hear public interest matters. However, the incumbent CJP Gulzar Ahmed has not carried on this practice. CJP Gulzar Ahmed did form larger benches in matters related to the coronavirus pandemic, presidential reference case and maintainability of writ petition against administrative order of superior courts judges etc but Justice Isa and Justice Maqbool Baqar were not part of those benches.

After the lawyers’ 2007 movement, the overuse or misuse of suo motu powers was widely criticised by the superior bars and major political parties except the ruling Pakistan Tehreek-e-Insaf. Both the Pakistan Muslim League-Nawaz and the Pakistan Peoples Party faced tough times due to use of suo motu powers by ex CJPs Iftikhar Muhammad Chaudhry as well as Mian Saqib Nisar and a number of politicians faced disqualification.

According to Article 225, no election dispute can be called into question except an election petition however, the Supreme Court disqualified many lawmakers while exercising jurisdiction of quo warranto under Article 184 (3). 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. He also established Supreme Court Human Rights cell to redress grievances of the public and during his tenure the cell received hundreds of complaints in a day.

Later, CJP Mian Saqib Nisar exercised public interest litigation in manner that could be described as unique. He even visited spots to redress public grievances. However, Supreme Court judge Justice Qazi Faez Isa put a question mark over the manner in which the Human Rights Cell initiated public interest litigations during CJP Nisar’s tenure.

In a three-page note, the judge said the Human Rights Cell director could not assume constitutional powers granted to the Supreme Court. He added that the CJP's approval was also not a substitute for a Supreme Court order.

According to Justice Isa, before exercising its original jurisdiction, the apex court should satisfy itself that the jurisdiction it is assuming is in line with the constitution. The CJP is himself supervising the Supreme Court Human Rights Cell where hundreds of applications are received daily.

Former chief justices – Tassaduq Hussain Jillani, Nasirul Mulk, Anwar Zaheer Jamali, Asif Saeed Khosa –used suo motu power sparingly. Now the biggest challenge is to evolve 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 especially those in line to become future chief justices will be unanimous in structuring the chief justice’s discretionary powers in initiating public interest litigation.

Similarly, the chief justices of high courts enjoy much wider roles under the constitution. Be it a matter of appointment of additional judges of the high court or their confirmation as permanent judges, the chief justice of the high court is crucial in as much as the process is set in motion on his proposals and reports, although decisions in this regard ultimately rest upon recommendations of JCP. Likewise, be it a matter of the constitution of new benches or circuit benches or fixing territorial jurisdiction of the benches, the chief justice of the high court has a vital role.

High court is possessed of original, appellate, revisional and constitutional jurisdiction in civil, criminal, commercial and constitutional matters and the most important power vesting in the chief justice of the high court is the power to constitute benches and fix cases. There has been a persistent demand from the bar councils to structure this discretionary power, which has also engendered controversies in high media value cases in recent times.

The high court chief justice exercises administrative control over the subordinate judiciary in terms of appointments, transfers and posting of the judicial officers, etc as well as those of the assets of the institution throughout the province and Islamabad Capital Territory, in case of the Islamabad High Court.

As a former member of the PBC puts it, “Administrative committees of the high courts assist the chief justices in the exercise of these powers and performance of these administrative functions. Wider as these roles are, the level of responsibility is equally increased. Growing instances of recourse to violence and intimidation by lawyers of the judicial officers, law-enforcing agencies and media as well as unwarranted culture of strikes, etc make these roles quite challenging, at least in the province of Punjab and now the Islamabad Capital Territory.”