Another Supreme Court judge has recused himself from hearing suo motu cases.
Justice Syed Mansoor Ali Shah, who was part of a three-judge bench, bowed out of hearing two cases of public interest during the ongoing week. Interestingly, both the cases were initiated by former chief justice Saqib Nisar.
Firstly, he recused himself from hearing a suo motu case regarding alleged corruption in the Thar Coal project and then from hearing a review petition against apex court judgment regarding removal of Pakistan Television (PTV) chairman Ataul Haq Qasmi.
Though no official reason is being revealed as to why Justice Shah recused himself, according to senior lawyers, it seems that Justice Shah does not want to hear the cases where “judicial overreach” is committed by initiating the suo motu jurisdiction in matters related to executive’s domain.
It may be noted that Justice Yahya Afridi has recused himself from hearing of every suo motu case since his appointment as a Supreme Court judge.
In a judgment in March that adjudicated on the distinction between judicial review, judicial activism and judicial overreach, Justice Mansoor Ali Shah had held that when judges commit “judicial overreach” they violate their oath.
He also described the judicial overreach as the courts’ exercise of power outside the Constitution and the law and encroachment on the domain of legislature or the executive.
“Judicial overreach is transgressive as it transforms the judicial role of adjudication and interpretation of law into that of judicial legislation or judicial policy making, thus encroaching upon the other branches of the government and disregarding the fine line of separation of powers, upon which is pillared the very construct of constitutional democracy,” said the judgment, authored by Justice Shah.
The judgment further said that “judicial overreach is when the judiciary starts interfering with the proper functioning” of the legislative or executive organs of the state. “This is totally uncharacteristic of the role of the judiciary envisaged under the Constitution and is most undesirable in a constitutional democracy,” Justice Shah added.
The court had said that such judicial leap in the dark was also known as “judicial adventurism” or “judicial imperialism,” adding: “A judge is to remain within the confines of the dispute brought before him and decide the matter by remaining within the confines of the law and the Constitution.”
According to the judgment, the role of a constitutional judge was different from that of a king, who’s free to exert power and pass orders of his choice over subjects. It added that after taking an oath to preserve, protect and defend the Constitution, a constitutional judge could not be forgetful of the fact that he himself was, first and foremost, subject to the Constitution and the law.
“When judges uncontrollably tread the path of judicial overreach, they lower the public image of the judiciary and weaken the public trust reposed in the judicial institution. In doing so they violate their oath and turn a blind eye to their constitutional role,” the ruling said.
The apex court emphasised that constitutional democracy leaned heavily on the rule of law, supremacy of the Constitution, independence of the judiciary and separation of powers. It said that passing orders, which were not anchored in law and did not draw legitimacy from the Constitution, unnerved the other branches of the government and “shake the very foundations of our democracy”.
In another case, Justice Shah had noted that when judiciary encroached upon the domain of the executive, it was said to commit “judicial overreach”, which occurred when a court acted beyond its jurisdiction and interfered in areas which fell within the executive and/or the legislature’s mandate.
“Through such interference, the court violates the doctrine of separation of powers by taking on the executive functions upon itself,” it said.
Regulation of suo motu powers
Previously, Justice Yahya Afridi had emphasised the need for structuring unfettered powers of the chief justice of Pakistan to form benches and exercise suo motu powers.
“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,” said Justice Afridi in his dissenting note while dismissing Justice Qazi Faez Isa’s petition against the presidential reference.
Justice Afridi, however, observed that passing any definite findings on this crucial matter in the current petition would not only be swaying from the issue in 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 at large, and it is not restricted to an individual or a group of individuals, how so large the group might be.”
The SC judge noted that it was also a settled law that the locus standi of the petitioner (Justice Isa) would not be a prime mover for determining this condition precedent of invoking Article 184(3) of the Constitution, except in exceptional circumstances.
Even the incumbent Attorney General for Pakistan, Khalid Jawed Khan, gave proposals for the regulation of the suo motu jurisdiction. Recently, a five-judge larger bench headed by Justice Umar Ata Bandial had declared that it was sole discretion of the CJP to initiate suo motu proceedings in any matter.
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