First, a court verdict by a former chief justice has cost Pakistan six billion dollars - an amount nearly equal to the three-year IMF loan which was recently secured with great difficulty.
The International Centre for Settlement of Investment Disputes (ICSID) slammed one of the biggest penalties in its history on Pakistan because a commercial contract with a foreign company - Tehthyan Copper Company (TCC) - was cancelled under orders of the Supreme Court.
Earlier, Pakistan was also fined 900 million dollars in another case involving the Turkish company Karkey’s rental power project, also because its contract was terminated on the orders of the Supreme Court. Here it must be recalled that the court had taken suo motu notice of rental power projects on the basis of a news report in an Islamabad-based Urdu daily. Subsequently, on March 30, 2012, the court declared all rental power projects (RPPs) void and illegal, and also directed the National Accountability Bureau (NAB) to proceed against them.
Interestingly, the then NAB prosecutor general, K.K. Agha - now himself facing a reference - sought to settle the issue with Karkey outside of court but the apex court stopped NAB officials from seeking any settlement. Later, an international firm Alen and Avery was hired to trace corruption and was reportedly unable to secure any proof.
This has raised questions about how the courts should proceed in complex technical matters apparently beyond its comprehension, and particularly when such issues have been taken up through suo motu notices.
The second incident relates to the alleged video tapes of a judge of the accountability court which convicted former premier Nawaz Sharif, and the subsequent affidavit submitted by the judge to the Islamabad High Court admitting that attempts were indeed made to blackmail him.
Who tried to blackmail the judge does not matter. The main thing is that an effort was indeed made to blackmail, and the instrument used was the so-called “Multan video.” Apparently the attempt at blackmailing was also not known to the supervisory judge of the Supreme Court who oversaw and monitored the progress in the case. It came to surface only in a press talk by Maryam Nawaz. Worse still, instead of probing the damning accusation, TV channels which had aired the Maryam’s press conference were punished and their broadcasts were suspended.
The matter is now before the court and it would be unwise to make any judgmental comments. However, the statement on oath of the accountability judge has raised some very serious questions that will haunt the criminal justice system of Pakistan, the procedures of judges’ appointments and the system of guarding the guardian. Credible and honest answers will have to be provided to the questions raised so far. Merely transferring the judge or changing his seat is neither here nor there.
The prime minister has talked of a ‘Pakistani mafia’ and accused it of employing, like the Sicilian mafia, bribes and blackmail to pressurise institutions. For the sake of an independent judiciary, this mafia must be exposed and punished. There is no escape from it.
There is clearly an urgent need to revisit suo motu powers as well as the procedure for appointments of superior court judges.
While on the bench, a number of honourable judges voiced concern over how suo motu powers were being exercised. However, once they were elevated to the position of chief justice, their enthusiasm to carry out this much needed reform seemed to wane. For instance, as judge Saqib Nisar in April 2014 called for setting parameters of the use of suo motu powers to “correct the mistakes made.” But when he became chief justice, his outlook changed completely. In a case before a bench headed by him, when Justice Qazi Faez Isa questioned the manner in which the suo motu notice had been taken, Nisar left the bench abruptly. He later reconstituted the bench and it did not include Faez Isa.
Suo motu notices seem to have been taken arbitrarily without much thought given to the Constitution. Similarly, not much thought has been given to the fact that while exercising these powers, the SC becomes a trial court and denies recourse to appeal. The violation of due process becomes even more serious when the issues involved are such in which the court is not expected to have specialised competence.
Regulating suo motu powers is an issue that involves the power of judges. Therefore, it would be wise that the court alone did not sit in judgment, and that the parliament also played a key role in deciding the issue.
The judge’s affidavit has also brought into focus the mode of appointment of judges and guarding the guardians. By introducing Article 175-A, the 18th amendment initially gave a modest role of the parliament in the selection of judges. But the Supreme Court was unhappy about this and not only did it deny the parliament any role, it also rejected any role of the prime minister and the president in appointments of judges.
Between 2010 and 2013, the chief justice alone made 126 superior judicial nominations and, in light of the July 31, 2009 verdict, also sacked over 100 judges. To many it looked like a judiciary of the judges, for the judges, by the judges in the making. A massive overhaul is unavoidable.
The writer is a former senator