The Supreme Court of Pakistan has declared the Review of Judgement and Order Act 2023 ultra-views to the constitution. This act had allowed convicts of the Supreme Court to file an appeal under Article 184 of the constitution which was not part of the law previously. The judgment comes a day after the 15th National Assembly was dissolved by the President on the advice of the Prime Minister but the timing of the judgment has raised eyebrows. At this point, it seems very clear that the implications to be followed will not merely be legal but also political.
The murmuring in the corridors of power had been initiated quite a long time ago when the Supreme Court, or to be more specific the “like-minded” bench of the Supreme Court had started to deliver verdicts that were well-anticipated. The allegations of bias and impartiality were raised within the Supreme Court. Judge Qazi Faez Isa and Justice Sardar Tariq Masood had opined that the constitution was being re-written when the Supreme Court announced a verdict on a constitutional petition regarding the interpretation of Article 63. Such a decision enabled Pervaiz Elahi to become Chief Minister of Punjab after the government of Hamza Shahbaz was dissolved. Interestingly, this decision was contrary to an early decision of the same Chief Justice when the issue of the No-Confidence motion was raised against Imran Khan in 2022.
Such precedents have tainted the reputation of adjudicators because Chief Justice stands in denial when expected to follow the principles he advocates. He advises the executive on exercising its powers democratically but stopped the implementation of Supreme Court (Practice and Procedure) Bill 2023 preemptively. The rationale is simple: the proposed bill aimed to restrict Chief Justice’s powers to constitute the bench solely and required him to consult top two senior judges of the Supreme Court in the constitution of benches. Like any other powerful person in Pakistan, Chief Justice does not prefer to share his authority with anyone so he simply did not allow the legislation to be enacted
Ironically, the Review of Judgement and Order Act 2023 was passed after the Practice and Procedure Bill but the decision on the former came earlier and that too at a time when the National Assembly stands dissolved. The impression arising of this entire exercise indicates that the Supreme Court has itself become a party instead of being an impartial adjudicator. Despite repeated requests from various Bar Councils and Attorney General, Chief Justice refused to call a full court session and end the confusion once and for all. Constituting a full court was probably the sanest advice Chief Justice Bandial could have acted upon amidst a constitutional crisis.
Unfortunately, even after 15 years of continued democratic rule, Pakistan has returned to square one. The tussle between executive and judiciary, starting post Lawyer’s Movement, has brought the country to standstill. The incumbent Chief Justice is to retire in the coming month so the upcoming Chief, Qazi Faez Esa, would be carrying a heavy burden on his shoulders. The process of reform and peace amongst the arms of state must be initiated and Judges have to respect the mandate of Parliament. Encroaching the mandate of Parliament is probably the most gruesome attack on democracy in a democratic dispensation. Judges ought to contemplate the consequences of their actions before striking down an act of Parliament. They have to ensure that Article 184 does not become an updated version of 58(2)(b) and used illicitly against democratic governments.
Moreover, there is an acute need to call a full court session and all the honourable judges to decide the constitutional matters of high importance. The judiciary must decide on how much resources should they invest in cases of political nature and create a consensus amongst all the judges of superior court on such matters. Pakistan has already suffered politically, legally, economically and social because of the verdicts announced by our judiciary. The delay in Sandek and Reqo Diq projects can be attributed to the conduct of our Judges.
Hence, it is time to call shots and take decisions which may direct our path towards stability, growth and prosperity. If Pakistan is to be operated the way it is being operated then unfortunately there is no light at the end of the tunnel.