Structuring Judicial Discretion

Structuring Judicial Discretion
Pakistan is facing a series of crises for the last few years. The independent commentators believe that the recent wave of our problems e.g., political, economic, and constitutional have a direct link with the decisions on the issues related to the dispensation of justice and conduct of business at the apex court.

The evolution of the constitutional history of Pakistan is not ideal.  The turbulent periods of extraconstitutional actions and their approval is a sad reflection on our highest judicial body that is bound under the Constitution to ensure its supremacy. The influence of dark eras of unconstitutional rules is still lingering and showing its impact in various institutions. And our judicial system is no exception.

Military dictators have ruled the country for over three decades. Even thereafter, the people of Pakistan had to face indirect intervention through hybrid systems or manipulating/controlling the executive’s powers through the courts. In nutshell, our constitutional history is mostly dominated by the doctrine of necessity, abrogation of the constitution by the dictators, validation of it by the courts, rewriting of the constitution by the judges, and providing facilitation for implementation of what is known as ‘Bajwa doctrines’ and like adventures by members of the judiciary.

The undesirable practice of interference in the higher judiciary has weakened our constitutional and democratic dispensations. Additionally, many controversial judicial decisions have cast heavily on our national treasury. The most recent judicial crisis emanates from the alleged abuse of discretionary powers by the Chief Justice of Pakistan (CJP) contained in Order XI of the Supreme Court of Rules 1980. This part of Supreme Court Rules gives unfettered powers to the CJP for the constitution of the benches to hear and decide the cases.

The established trend of like-minded judges (G5) in cases of public importance is not new in Pakistan. Despite reservations from the legal fraternity, G5 has been prevailing invariable since the days of Mian Saqib Nisar as CJP. The chance to elicit and sensitize different views, other than those from G5, is yet to be given. The prevalent trend of relying on G5 is rampant and has yet not been curtailed. Needless to mention that after noticing different stances adopted by the few judges, as opposed to those expected from the five-member bench in Constitutional Petition No. 29 of 2016 (Panama Papers Scandal reported as PLD 2017 SC 692), an effort is consciously made to seek unanimity and avoid any difference of opinion by excluding the senior and non-conformist judges.

In the above case, the five-member bench of the Supreme Court headed by Justice Asif Saeed Khosa directed the Chairman of the National Accountability Bureau (NAB) to file an appeal in the Supreme Court of Pakistan in a time-barred case, Messrs Hudaibiya Paper Mills Ltd and Federation of Pakistan and Other (PLD 2016 Lahore 667).

The five members’ bench also expressed their annoyance at the conduct of the Chairman NAB for not filing an appeal and wrote in the order: “The Chairman, NAB shamelessly defended the decision of not filing an appeal. Interestingly, appeals are filed by the NAB before this Court in routine but not in this case. We believe that a population census is in progress. It is expected that the population of Pakistan would be more or less 200 million. If out of the 200 million people of Pakistan the only person, we can find to head over Premier Anti-corruption Institution is Respondent No.2, we might as well legalize corruption”.

Upon filing an appeal on the direction of the five-member bench of the Supreme Court, the three member-bench headed by Justice Mushir Alam comprising Justice Faez Isa and Justice Mazhar Alam Khan Miankhel dismissed the appeal seeking to reopen the case on the pretext that the Sharif family was denied the right to vindicate themselves. Moreover, the court said that we have come to the painful conclusion that respondents 1-9 were denied due process and ruled that the legal process was abused by keeping the reference pending indefinitely and unreasonably. The reference severs no purpose but to oppress them.

After this judgment highlighting the contrary view from the judges having a similar opinion, it was repeatedly noticed the inclusion of like-minded judges in the bench hearing cases involving important constitutional as well as political matters to get unanimous decisions. This practice is being followed continuously and in a TV program, a famous lawyer, Barrister Salahuddin Ahmed, shared some interesting statistics. According to him, in the last few years, few handpicked judges made part of 73 cases of political and constitutional importance whereas, on the other hand, some of the most senior judges were part of 9 such cases only.  This disparity, he says, makes it quite clear that certain judges are given preference over others while deciding matters involving important political and constitutional questions. This unfortunate trend is also indicative of the fact that very less or no weightage is given to the profile and experience of a judge.

The bitter reality is that the power to constitute the benches vests exclusively with a single person i.e., the Chief Justice of Pakistan, who without any mechanism and objective criteria forms and deforms benches. On top of this, an unfortunate trend is observed, where few selected judges are cherry-picked by the CJP, especially for cases with political connotations.

In view of the above, the debate about the role of the judiciary in Pakistan is taking a new turn. The legal experts and commentators are highlighting the importance of Article 176 of the Constitution of 1973, which says: “The Supreme Court shall consist of a Chief Justice to be known as the Chief Justice of Pakistan and so many other Judges as may be determined by Act of Majlis-e-Shoora (Parliament)] or, until so determined, as may be fixed by the President”. They argue that when Supreme Court collectively means CJP and all the judges, how a single or some handpicked judges can take up important constitutional decision affecting the entire federation?

In order dated February 23, 2023 in Suo Muto Case No. 1 of 2023, Justice Ather Minallah in his separate note observed:

The framers   of the   Constitution have   conferred   an extraordinary jurisdiction on this Court under Article 184(3).  The manner  in which  this  power  is to be  exercised  is in  itself  a matter  of immense  public importance.  While invoking the jurisdiction great care has to be exercised. Article 176 of the Constitution describes the constitution of this Court.  I am of the opinion that it  is  implicit   in  the  language   of  Article  184(3) that  the conferred  extraordinary original  jurisdiction  must  be entertained and  heard by the Full Court. In order  to ensure  public  confidence  in the proceedings in hand  and  keeping   in  view  the  importance  of the  questions   raised  for  our consideration,  it  is  imperative  that  the  matter   regarding  the  violation   and interpretation of the  Constitution is heard  by a Full Court.  The interpretation of Article 184(3) of the Constitution in this context, therefore, also requires interpretation.

Supreme Court has ruled in the Messers Mustafa Impex case that hat no prime minister can move any legislation, finance, or fiscal bill or approve any budgetary or discretionary expenditure on his own without taking the cabinet into confidence first. However, Chief Justice despite explicitly and exclusively defining “Supreme Court” in the Constitution of Pakistan is not ready to follow the same principle.

Another anomaly in the Supreme Court Rules is that these rules do not specifically explain the consequences/punishment for misuse of these powers exercised by the Chief Justice. However, the Chief Justice of Pakistan being a judge while exercising these powers is bound to adhere to the judges' Code Of Conduct [“the Code”] to ensure that justice is not only done but is also seen to be done.

The Code further requires that a judge must avoid all possibility of his opinion or action, in any case, being swayed by any consideration of personal advantage, either direct or indirect as envisaged in article IV of the Code of Conduct for Judges of the Supreme Court and High Courts (Framed by the Supreme Judicial Council under Article 128 (4) of the 1962 Constitution as amended up to date under Article 209(8) of the Constitution of Islamic Republic of Pakistan 1973) and notification of the amended code of conduct issued on September 2, 2009. The violation of the Code can attract proceedings of misconduct against any judge including the Chief Justice of Pakistan.

The question arises that if it is established that Chief Justice/Judges are guilty of misconduct due to violation of their code of conduct, the process of action for misconduct against the judge rests expressly with the Chief Justice. The procedure empowers the Chief Justice being the head of supreme judicial counsel to play its role. It rests with Chief Justice to initiate any proceedings against the Judge or let it go.

A few days back, the audio tapes surfaced on social and electronic media of a sitting Supreme Court judge talking over the phone with a former Chief Minister of Punjab and fixation on a specific case before him. The judge despite that not only became part of the bench but also decided the case in favour of the police officer.

However, the CJP, despite protest by all Bar Councils of Pakistan, refrained from taking any action against him, rather took suo moto action on his request and made him part of the bench to hear an important constitutional matter. In past, during the tenure of Mian Saqib Nisar as CJP, Justice Shaukat Aziz Siddiqui was removed without investigating the veracity of the claims made against former Director General Inter-Services Intelligence (ISI), while addressing the lawyers in Islamabad Bar Council.

Unfortunately, abuse or mere allegation of abuse of power by a politician can land them in jail, however, the same practice on the part of the judges of the higher courts make them holy cow and they remain untouched throughout their career and afterward. These dual standards are the reason behind our poor ranking on the rule of law index issued by the World Justice Project.

The Parliament of Pakistan being a supreme legislative body has an extended responsibility to play its role to bring uniformity to our system through legislation. The constitution of benches is considered the administrative power of the Supreme Court; however, this power is not vested to the chief justice in various developed countries. We are living in the era of the fourth industrial revolution where orthodox systems are being replaced with technology. We should handle this issue by introducing a computerized system for the constitution of the benches that will be monitored through the automatically created logs. The cases should be assigned on a first come first serve or proration basis so that the involvement of judges across the board ensures that collective wisdom is applied whereas any violation on the part of the chief justice or registrar should have consequences.

Moreover, the political and constitutional matters those have an impact on the entire country must be fixed before the full court so that no one can object to the verdict. The intention of the legislature matters while interpreting the constitution. Recently, Bilawal Bhutto Zardari while addressing the golden jubilee ceremony of the 1973 Constitution of Pakistan explained the intention of legislation regarding the defection clause, however, the three-member bench headed by the Chief Justice of Pakistan, while interpreting Article 63A, took a different stance and rewrote the constitution. To avoid such types of conflicts, the primacy provision of Section 106 of the Constitution of Finland can be a guiding principle for us and in case of any ambiguity or conflict, the matter should be referred to the parliament for its interpretation rather than the court.

Similarly, the suo moto powers assigned to the Chief Justice of Pakistan need to be reviewed by the parliament. It should have some checks and balances. The blatant abuse of these powers since the tenure of Iftikhar Muhammad Chaudhary cost us heavily. It made our institution dysfunctional weakening the democracy and the country to suffer huge monetary losses.

Moreover, the self-accountability system of the judges through the Supreme Judicial Council needs to be revisited. Though Bilawal Bhutto Zardari, Co-Chairman of Pakistan People’s Party, has hinted to present an amendment for the applicability of the NAB Ordinance on the judges as well, however, the procedure of their appointment and removal should be made through parliament and the method of their performance evaluation should be introduced through the specific judicial board. We have to realize that Pakistan's stability is linked to a strong and independent judicial system that on one hand will strengthen democracy and, on the other, can boost the trust of foreign investors in our system, ultimately putting the country on the road to prosperity.




The author is a corporate lawyer based in the USA and an expert in international public law, labor law, white collar crimes and sanctions compliance.