“There is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice.” — Montesquieu
The government de jure vociferously voiced their opposition to a bench constituted by the Chief Justice of Pakistan in C.P. No. 05 of 2023 before the Supreme Court against the ECP decision to not hold elections in Punjab as per the mandated timeline. Whilst the government initially ‘requested’ CP 05/2023 to be heard by a Full Bench, this request soon became a demand which quickly progressed to an ultimatum.
The situation worsened upon passing of Order dated 04.04.2023, with the Court declaring the ECP’s decision to be unconstitutional. The government categorically stated they would not follow the decision and commenced ugly malicious accusations against the Court, with the Premier going as far as saying the Order was ‘murder of justice’ (an action potentially contemptuous in nature). Members of the National Assembly openly discussed and passed adverse statements, in direct violation of Article 68 of the 1973 Constitution which restricts discussion in Parliament about any Judge of the Supreme Court. A matter of greater concern was the National Assembly resolution on 06.04.2023, which directly refused to accept the Order.
These unconstitutional measures highlight a worrying state of affairs, where the Executive and Legislative Branches are blatantly flouting the Constitution in an attempt to usurp powers of the Judicial Branch, attempting to creating a de facto totalitarian regime.
When the CJP refused the government request for a Full Bench hearing, the ‘Supreme Court (Practice & Procedure) Bill, 2023’ (“SCPPB 2023”) was moved in Parliament, aimed to curtail the Chief Justice’s power for regulating suo moto matters — a direct attempt at interference over the Judicial branch. Suo moto is a power granted to the Supreme Court under Article 184(3) of the Constitution and is applied under the administrative control of the CJP, as per practice and under the Supreme Court Rules 1980 (established under article 191 of the 1973 Constitution). Under the current SC Rules it is the CJP who nominates Benches for hearing of all cases, which include suo moto matters. This is a fact accepted by the government, else the SCPPB 2023 would be redundant as there would otherwise be no need to pass a law curtailing the CJP’s powers of suo moto (if the CJP never had these powers to begin with). Moreover, this view was already fortified by a five-member Bench of the Supreme Court in Suo Moto Case No. 4/2021 (Press Association Case) who unequivocally held that all suo moto powers (in deciding the Bench and which matters were to be heard) rested exclusively with the CJP, and none other. Article 191 of the Constitution provides only the Supreme Court itself being empowered to make rules regulating their practice and procedure, not the government nor Parliament.
The trichotomy of power is a backbone of our 1973 Constitution, which entails three separate branches for proper functioning of the country: i) Executive (Government); ii) Legislative (Parliament) and iii) Judicial (Courts). It is vital that none of these three branches should overlap another’s power, else there would be no checks or balances on abuse of power. This is a precise reason the doctrine for separation of powers is a fundamental essence of governance, and any breach would render this constitutional philosophy voided.
Neither the government nor Parliament holds any mandate to dictate to the Court the composition and terms of hearing cases. Such attempts at “bench-fixing” i.e. picking and choosing judges hearing specific matters would in effect render the Judiciary under control of the Executive, and justice would be lost.
This Parliament itself has previously applauded many non-Full Bench judgments, e.g. a five-member judgement in 2022 against the Assembly Speaker’s ruling defying a no-confidence motion against the then Prime Minister; a non-full Bench decision disqualifying a former Prime Minister in the year 2012; and the seven-member Bench decision suspending declaration of emergency on 3rd November, 2007 to name a few. So why and under what law do the Executive now stake a claim to a Full Bench hearing as a right? Even more pertinent, under what law does Parliament claim the right to not abide by orders of the Court? Perhaps it also needs to be remembered these are some of the same parliamentarians whose disregard was observed during storming of the SC premises in 1997.
Should a parliamentarian take any issue with the conduct of a judge, the same is to be referred to the Supreme Judicial Council under Article 209 of the Constitution, which provides a mechanism for recourse. The Executive or Legislature cannot override the same, nor can an order of the Court be defeated through a parliamentary resolution.
Any constitutional law practitioner will tell you the only power held by the Executive Branch over the Supreme Court is having two representatives present during the process of appointing a SC Judge (Article 175 A); whilst the Legislative Branch only holds the power to determine the number of SC Judges (Article 176) and to potentially pass a law enlarging the Court’s scope. There is no provision for interference in the Court’s administration or functioning.
The government must remember they are elected creatures created by the Constitution which provides both their powers and limitations, neither of which can be curtailed nor exceeded. Parliament is playing a dangerous game, and its ill-effects will see long-term repercussions. The government/parliamentarians like all others are duty-bound to obey Court orders and this unconstitutional defiance needs to be immediately halted in the better interests of the country. Keeping intact the three separate Branches prescribed under the Constitution protects an envisaged democratic state of the people, and prevents personal fiefdoms from rising.
Published in The Express Tribune, April 22nd, 2023.
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