These include powers to initiate nominations of Supreme Court (SC) judges; to invoke suo motu jurisdiction; and most importantly, to constitute benches and allocate cases.
Speaking to The Friday Times (TFT), one of the leading legal brains in the country and former attorney general of Pakistan, Ashtar Ausaf Ali said that in his opinion the Supreme Court has no suo motu powers to take up cases. “The Constitution and law clearly mention whatever power the apex court has, while these suo motu powers are not mentioned anywhere in the law and constitution, and SC has come up with this metaphor up on their own.”
Speaking to TFT and in her series of tweets, acclaimed lawyer Reema Omer said that UN standards and comparative best practices are also very clear.
“Cases should be allocated through objective mechanisms. This power should not rest with the CJ,” Miss Omer opined while adding that in addition, certain factors peculiar to Pakistan have made what appears to be a mere administrative power an extremely critical one.
While giving examples of established democracies in the world, Miss Omer opined that a number of SCs (e.g. US, Canada) only sit in full courts.
“SC strength in Pakistan is 17 judges who sit in benches comprising as few as 2 judges or 5 for constitutional matters, though that is not always followed,” she said.
For her, this means the choice available to CJ in judge and bench selection is unduly large.
The former Attorney General maintained that it is about time that some rules are devised for the formation of benches based on their expertise; for instance, if some judge is an expert on tax related matters, he should be made the head of bench taking up criminal cases.
“Some yardsticks or rules need to be devised. Administratively, the CJ must have some powers to constitute a bench, but there needs to be a certain criteria for that,” he said.
Barrister Taimur Malik was of the opinion that the recent controversies surrounding the composition of the Supreme Court benches, allocation of certain types of cases to specific judges and other discretionary powers of the CJP clearly suggest a need to revisit and reform the role of the office of the Chief Justice of Pakistan.
“The Chief Justice is indeed the first among equals on the bench but unfettered discretionary powers with this office are not necessarily in line with the concept that justice should not just be done but must manifestly and undoubtedly be seen to be done,” Barrister Malik noted.
For him, reform should not just be limited to the above but it is also important to have a fixed term for this post, in line with most other constitutional positions in the country.
“It doesn’t serve the interests of the administration of justice to have a person serve as the Chief Justice only for a few months or for a very long period of time,” Barrister Malik concluded.
Agreeing with them, Miss Omer maintained that judicial independence also means freedom from undue interference from ‘within’ the judiciary.
“How decisions such as case allocation, bench composition, suo motu etc. are made in the SC is, therefore, a matter of public interest - not a “private matter” that should be hushed up,” she pointed out.
The judges, for her, who raised these concerns in court and in their separate notes have done a great service to the independence and credibility of their institution, and the rule of law. “It is absurd to see them being criticized for flouting outdated and irrelevant ideals of “decorum”.
Expansion of Article 184(3) and extraordinary powers of CJ
Miss Omer believes that at same time, pending cases are increasing, numbering over 50,000, and since 2009 in particular, expansion of 184(3) original jurisdiction/suo motu means CJs are not just deciding which of the existing cases to take up, they can on their own also take up new cases for immediate hearing.
For her, in short, it would be misleading to think of CJ’s powers as innocuous administrative powers.
“The CJ can decide what case to take up, when to take it up, how many judges will hear it, who those judges will be,” Omer said while maintaining that this is placing an astonishing amount of power in one person/office.
Speaking to TFT, senior lawyer Tafazzul Haider Rizvi said that for professional lawyers a behemoth issue is with regard to fixation of regular cases.
“We file Petitions and the same doesn’t get fixed for months. This seriously dampens the confidence of an ordinary litigant in the judicial system,” Rizvi pointed out while suggesting that it is need of the hour that discretion with regard to case fixation be structured and streamlined.
Abuse of discretion powers
Miss Omer pointed out that many other countries follow various models to structure such discretion; some don’t allow it at all.
“Troublingly, in Pakistan, there are no safeguards against abuse of discretion at all. Also, this power is found not in the constitution/statutes, but in SC rules (made by SC itself),” she observed.
Agreeing with her, one of the leading constitutional experts and former attorney general of Pakistan Ashtar Ausaf Ali said that honorable judges of the SC in their decisions mention structuring discretionary powers, likewise they must implement it on themselves also.
Agreeing with them, senior lawyer Bilal Hasan Minto said that there must be some structure to the SC's exercise of discretionary powers.
“SC Judges deliver judgments every day about how others should exercise discretion and they need to apply the same to themselves too. How does the CJP decide who sits on which bench? How is the urgency of taking up or continuing a case hearing determined? What is this word "prerogative" and why should it be exercised by one man just because he is CJP by accident of seniority? And now this new culture of judges speaking too much. I mean, it's called a "hearing" for a reason. It's not a debate between the counsel and the judge. You hear the counsel, you ask some clarificatory questions, and you decide. That should be it. And until not too long ago, that's how it was… Respect is earned. It cannot ever be forced by fear of punishment. No contempt law will make an individual respect a judge who doesn't otherwise deserve it; who is partisan or compromised,” he said.
Minto believes that unfettered discretionary powers should not exist.
He suggested that the government must bring the legislation about this while citing Article 191 of the constitution which says that subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court. “It is clearly mentioned in Article 191 of the constitution and it is the responsibility of the government and Parliament to do this if the Supreme Court fails to do so in order to hang on to unbridled discretion.”
Minto said that, "cases with urgency remain pending in the SC instead of being taken up the next day after filing (as is done in the high courts) and this pick and choose must stop".
Minto accepts that some constitutional matters are time sensitive and need to be taken up immediately like for instance “the elections of assemblies within 90 days etc., but there must exist, and be applied, rational, clear criteria as to the order of taking up cases and urgency of cases must be decided on a hearing the next day after filing."
"Similarly, the arbitrary constitution of benches has become a joke and must stop with proper rules in place".
Minto said, “Everyone is obsessed with form, pomp and show. The robes, the footmen carrying judges' gowns and bringing their spectacles before they arrive in court, the ridiculous "my lord '' culture, the footman walking in front of them as they come and go from court.
He maintained that all this pomp and show is sufficient to make one feel that judges are not doing a job for remuneration, but that they are doing everyone a favor by being judges.
Need for legislation
The judges who raised these concerns in court and in their separate notes today have done a great service to the independence and credibility of their institution and the rule of law.
It is absurd to see them being criticized for flouting outdated and irrelevant ideals of “decorum”
Miss Omer suggested that it is now imperative that courts - or parliament through legislation, if required - adopt a clear, transparent, credible case allocation mechanism in line with international standards to uphold independence of judges deciding individual cases as well as judiciary as a whole.
https://twitter.com/reema_omer/status/1630270946782134272
Agreeing with her, Minto and Ali also said that clear legislation is the need of the hour.