‘Misuse’ of suo motu powers questioned

ISLAMABAD:

The superior judiciary is facing a battle of perception of shaping politics as well as changing regimes in the country after its restoration through a mass movement in March 2009.

Instead of addressing the grievances of the oppressed classes in the country, the Supreme Court’s suo motu jurisdiction -- under Article 184 (3) -- is used to question the executive’s decisions and changing regimes.

One section of lawyers alleges that the apex court exercises its public interest litigation under Article 184 (3) in a few cases for “political engineering”.

However, leaders of political parties cannot be absolved of their negative role as well.

They tried to use the superior judiciary against each other. When the PPP was in power, PML-N chief Nawaz Sharif requested the SC to open a probe into the Memogate scandal, in which then-president Asif Ali Zardari was allegedly involved.

The SC under then top judge Iftikhar Muhammad Chaudhry was also involved in the election processes including the preparation of voter lists.

In February 2012, it suspended 28 lawmakers elected in by-polls after the 18th Amendment.

They remained suspended until the passage of the 20th Amendment. The SC also expedited the 2013 general elections by rejecting Pakistan Awami Tehreek chief Dr Tahirul Qadri’s petition against the ECP formation.

It is an open secret that the PPP’s reputation took some serious damage due to the Supreme Court proceedings, allowing the rival PML-N to capitalise on the vacuum. Former prime minister Imran Khan also accused ex-CJP of being involved in rigging in the 2013 elections.

Ex-premier Yousuf Raza Gilani of the PPP was convicted in a contempt case wherein the SC had directed him to write a letter to Swiss authorities regarding the reopening of cases against then-president Zardari.

In November 2016, ex-CJP Anwar Zaheer Jamali had fixed the PTI chief’s petition seeking disqualification of then PM Nawaz Sharif on account of Panamagate revelations.

On April 20, 2017, a majority judgment called for forming a powerful joint investigation team (JIT) to probe into the sources of the fund used by the Sharif family to purchase their assets.

The issue related to the employment of Nawaz in his son’s UAE-based company Capital FZE surfaced for the first time in JIT’s final report.

Senior lawyers believe that without the assistance of some powerful stakeholders, it was not possible for the JIT to bring the documents related to Capital FZE from the UAE.

In view of these documents, Nawaz was disqualified for life on July 28, 2017 and NAB was ordered to file four references against the Sharifs.

The court also ruled that an SC judge will monitor proceedings of accountability courts once NAB filed references.

Justice Ijazul Ahsan was the monitoring judge who supervised the trials of PML-N leaders. However, there is no detail as to what were the parameters for the supervision. Sharif’s counsel Khawaja Haris contended in a review petition that the supervision would affect a fair trial as the SC had itself become the complainant, prosecutor, and judge.

In November 2017, the Islamabad Accountability Court-I judge denied Nawaz’s application to club all three references against him for a joint trial. But in June next year, the SC allowed the accountability court an unrealistic four-week extension when it sought permission for the move.

The extension ended just two weeks before the election and when the judgment came out, Nawaz, his daughter Maryam and her husband Capt (retd) Safdar were convicted and put behind bars just before the polls.

A three-judge bench led by then CJP Saqib Nisar also declared Imran Khan as “Sadiq and Ameen”. However, the same bench disqualified PTI leader Jahangir Khan Tareen.

The SC under ex-CJP Nisar also declared the disqualification of lawmakers under Article 62 (1) (f) would be permanent.

Contrary to the Election Act 2017, the Supreme Court on June 5, 2018 restored almost all information omitted in the nomination forms by parliament. Likewise, election matters were fixed before specific benches of the superior courts. When the election process was continued, PML-N leader Hanif Abbasi was also convicted in the ephedrine case. Ex-CJP Nisar also took suo motu notice of alleged money laundering through fake accounts in Sindh.

PML-N lawyers contended that they were not given a level playing field in the 2018 general elections.

The SC’s role cannot be ruled out in the ouster of ex-PM Imran Khan through a vote of no-confidence.

Now, a debate has again started as to whether or not the SC would again play its role to remove the incumbent coalition government. CJP Bandial has already taken suo motu notice over the alleged political interference in the working of prosecution and investigation in graft cases against the highest officeholders, especially PM Shehbaz Sharif and Punjab CM Hamza Shehbaz.

Though the incumbent superior judiciary may have been the outcome of a mass movement, it has been unable to shake the perception that it is under the security establishment’s influence. Political parties have been victims of judicial overreach.

Perhaps it is time for judges to question whether their rulings served to strengthen democracy over the previous decades.

They also need to examine the track record of their success in protecting civil liberties and freedom of speech. A question to ponder is how to change the view that judicial proceedings are manipulated by the establishment in high-profile cases. The removal of elected premiers, at least, has not been appreciated.

It is high time that the judiciary should take steps to get its own house in order. The discretionary powers of the CJP should be regulated forthwith as well.

The exercise of public interest jurisdiction under Article 184 (3) should be used sparingly. It should not be used in those matters which advantage or disadvantage any political party. This jurisdiction should be used to give relief to those whose rights are being usurped by state institutions.

Justice Maqbool Baqar, who retired last month, said the exclusion of certain judges from hearing sensitive cases on account of their independent and impartial views has had an adverse effect on the impartiality of the judiciary.

“The practice has also tarnished the public’s perception about the independence of the judiciary,” he added.

“This practice also tends to affect the morale of judges who are consigned to less significant benches and fosters feelings of estrangement amongst their members.