In a landmark but anticipated decision, a split 10-5 verdict from the Supreme Court has upheld 'The Practice and Procedure Act 2023'. The Parliament had passed the law in April this year, but was almost immediately 'put on hold' by former chief justice Umar Ata Bandial.
In the face of Pakistan's chequered political history, the verdict opens a new chapter vis-a-vis the Supreme Court deciding political cases. It was preceded by the unprecedented act of an in-camera and live telecast of hearings by the full court, which not only put the spotlight on the top court but also revealed the subcutaneous truths and fault lines within the highest edifice of justice.
Before delving further into the details of the judgment, I would like to express that it is not the gun but the man holding it that matters.
We have had the same Constitution, laws and rules for years, but their application and definition in different issues by people of a certain mindset produced different legal, constitutional and political consequences at various times. As a result, personal ethos, courage and commitment to a cause had a far greater bearing than what was perhaps written in the law.
To be specific, Wednesday's verdict, if adhered to by successors chief justices, may prove to be a cornerstone for the notion of supremacy of Parliament.
If one ponders deeply and unbiasedly over the current ‘polycrisis’ faced by the country, one of its causes is the contempt for the public will in running the affairs of the state and the negation of the notion of supremacy and sovereignty of the Parliament.
We had adopted the Westminster model of democracy and parliamentary system, but it seems to be only in name. The power and sovereignty of the British Parliament gave birth to many political adages such as: ‘Parliament can do everything but make a woman a man, and a man a woman’.
Some, who were affectionate of parliamentary supremacy, go beyond by suggesting that while the Parliament cannot change a man's physiology into a woman, it can declare a man as a woman through its act. And if one traces the roots of political stability and ensuing power that transformed the isolated British Isles into a formidable colonial and world power until the 20th century, and later as a first-class power, the supremacy of Parliament and the delivery of justice of British courts, especially by the ‘King’s Courts’ and merit-based appointment to public offices and services are among the primary factors.
Subsequently, miracles took place with the King to the aristocracy, Sandhurst to bar, and bench, all surrendered to the wisdom of the collective of commons, irrespective of its perfection or imperfection.
These masterstrokes saved the British from internal political upheavals, such as those in neighbouring France. They contributed to achieving the status of a world power and maintaining it.
Unfortunately, in the case of Pakistan, the great abhorrence to the parliamentary system and supremacy of Parliament comes from Sandhurst and, in common law-trained generals and my lords.
For the time being, this verdict has landed a partial blow to that contempt for collective wisdom and the people's will, which should intrinsically be represented in the supremacy of the Parliament.
However, the masterstroke in these processes was the daring decision of Chief Justice Qazi Faez Esa to hold hearings of the full court for the entire nation and the world at large to see.
For the first time, the people of Pakistan got a chance to directly observe the workings of the Supreme Court. They also gained first-hand knowledge about the thought process of judges of the superior courts, which speaks more than merely the net outcome of the process.
Apart from shedding light on the competence of the judges, it allowed the public to decide who adheres to the letter and spirit of the Constitution and law unbiasedly and who was just using the law to score points.
It is a matter of common sense that the Parliament is the creator of the Constitution and of the Supreme Court, so how could the creator's power be grossly conditioned by the creature?
Moreover, it also peeled back the curtains for the people to see whose thoughts were politically biased and who leaned purely towards the Constitution.
The court, in its short order, briefly decided three major issues. The first was whether under Article 184 (3), the chief justice could decide to take a suo moto unilaterally and whether the chief justice alone was the proverbial 'Master of the Roster'. Second, it decided whether or not there was a prospective right to appeal. Third, it decided whether there was a retrospective right to appeal.
The views of the five dissenters reflect the tainted legacy and political leaning of the former chief justices, such as Saqib Nisar and those of his cohort in the Supreme Court.
While deciding on the point of retrospective right to appeal in cases decided under Article 184 (3) of the Constitution, it seems that the Panama legacy remained pronounced in the minds of the dissenting judges.
Some of the judges negated the right of the Parliament to legislate regarding the functions of the Supreme Court based on separation of power and judicial independence - powers granted by a Constitution voted on and passed by the same Parliament. They even alluded to the imperfections; how could the Parliament dare to venture into their domain?
Fortunately, the verdict recognised the Parliament's right to legislate about the Supreme Court.
One does not need to be a graduate of the Harvard School of Law or Barkley to figure that out. Rather, it is a matter of common sense that the Parliament is the creator of the Constitution and of the Supreme Court, so how could the creator's power be grossly conditioned by the creature?
On the point of perfection and imperfection, one wonders to what extent is the Supreme Court perfect.
Chief Justice Isa obliquely pointed out in his remarks that the same Supreme Court had legitimised the Constitution's abrogation and dismembering of the Parliament, not once but four times.
From former chief justices Saqib Nisar to Umer Ata Bandial, was the Supreme Court not part of the political engineering?
Though the verdict is a watershed moment, one can't help but feel this is a first strike on the carapace of deep-rooted anomalies that have taken root in our judicial system.