Intrusion: SC will ‘resist conceding its jurisdiction’

ISLAMABAD:

After issuing a wave of hotly-contested decisions in recent months, voices – both inside and outside – have sounded alarms that the Supreme Court has “seized” the power from the legislative and executive branches to have the final say over the Constitution.

But legal experts reckon that the apex court is loath to concede its jurisdiction as the federal government mulls stripping the judiciary’s jurisdiction and returning it where it thinks it belongs. The top court, they believe, will wrest it back by striking its gavel.

The Chief Justice of Pakistan (CJP) currently enjoys unfettered discretionary powers to constitute benches, ‘fix’ cases and initiate public interest proceedings under Article 184 (3) of the Constitution. Likewise, as a chairman of the Judicial Commission of Pakistan (JCP) as well as the Supreme Judicial Council, he has vast discretionary powers in the process of appointments of judges and their removal under Article 209 of the Constitution.

‘SC will strike it down’

Talking to The Express Tribune, former president of the Supreme Court Bar Association (SCBA) and head of lawyers’ professional group Hamid Khan said he opposed any move to regulate discretionary powers of the CJP through a simple piece of legislation, emphasising that it can only be done through amendments in the Supreme Court rules which can only be done by the top court itself.

The senior also questioned the timing of the government’s decision to bring such legislation, wondering if the government was taking steps in the direction following the apex court’s verdict in the contentious Punjab chief minister’s elections that dethroned Hamza Shehbaz.

However, Hamid Khan admitted that there was a need to regulate CJP discretionary powers but was quick to add that the right channel for doing that was bringing tweaks in the SC rules.

Khan also agreed that senior judges like Justice Qazi Faez Isa were not being included in special and larger benches hearing high-profile cases.

Similarly, former additional attorney general Waqar Rana echoed Hamid Khan’s views, saying that the jurisdiction of the apex court only be determined by the Constitution and there was no other way. He added that there was no legislative power to regulate the CJP’s powers through simple legislation.

Rana pointed out there were SC judgements defining the powers of the CJP which could not be overturned through a simple act of the parliament as an amendment in the Constitution was required for the purpose.

Meanwhile, PTI’s lawyer Babar Awan reckoned that the top will strike down any law that sought to check the discretionary powers of the CJP.

‘Constitutional amendment needed’

Senator Ali Zafar opined that amendments in the law would merely translate into procedural changes, noting that a constitutional amendment was required to place regulations on the jurisdiction.

Similarly, Barrister Asad Rahim suggested that the political forces should consider amending constitutional provisions they find troubling such as Articles 62 and 63 through the parliamentary process, rather than attempting to control the judiciary with hare-brained attempts at clipping its powers each time a judgment goes against them.

Citing a decision in a seven-year-old case wherein the SC’s majority judgment had emphasised that the independence of the judiciary was one of the salient features of the Constitution, the lawyer enjoys the powers to review any constitutional amendment that puts a dent in its independence.

‘Someone has to do it’

However, another lawyer, who agreed with the government’s stance, pointed out that the government was only making legislation to regulate the CJP’s powers and was not curtailing them. He noted that when the SC’s full court was refusing to review unfettered powers vested in the CJP, then someone has to review them.

“No full court meeting is being held for the last two years,” he lamented and stressed the need for a full court meeting to amend the rules in order to keep a check on the CJP’s powers.

It is noteworthy that for some time now, even top court judges have been raising their voices for the regulation of discretionary powers of the CJP.

Building a case against ‘unstructured discretion,’ Justice Qazi Faez Isa, in a letter to Justice Gulzar Ahmed on February 10, 2021, 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

Similarly, 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.