News Analysis: Lawyers question SC move to kill law before it’s born

KARACHI: The Supreme Court’s Thursday ruling in the matter of the SC Bill is unprecedented, goes against settled jurisprudence and is a head-scratcher, say legal experts. They also add that celebrating such preemptive intervention would be short-sighted. “What the Supreme Court has done is completely unheard of,” says lawyer and TV host Muneeb Farooq. His sentiments are echoed by lawyer Waqqas Mir who says: “I think whether you’re 17 or 70, you will find this eight-member bench order to be a real head-scratcher. Its reasoning is curious and to a surprising extent it is suggestive this bench unanimously sees the bill — remember this isn’t a law yet — is constitutionally suspect. No law school prepares you for this. This order can perhaps be best explained if we stop pretending this is about the law.”

Noting that, “Interestingly, not a single judge” has dissented in Thursday’s SC order, high court advocate and former faculty at LUMS Hassan Abdullah Niazi says that “The SC’s interim order -- by a bench that deliberately excludes every single judge that recently dissented against the CJP -- has some innovative jurisprudence. It accepts that the bill has not yet become law, but still feels it can adjudicate over its constitutionality. It even throws in a passing line regarding how it can examine what ‘parliament seeks to do.’” Writing on Twitter, lawyer Reema Omer says: “[The] SC order today and its ‘anticipatory injunction’ against a bill (not even law yet) based on ‘tentative assessment’ is farcical — it is inconsistent with the Constitution; trespasses into parliament’s domain; and makes a complete mockery of settled law as well as common sense.”

Citing case law, she tweets that in “PLD 1989 SC 61: Fed of Pakistan v Aitzaz Ahsan, others: ‘It is well-settled principle of constitutional interpretation that until a law is finally held to be ultra vires for any reason, it should have its normal operation’ (This was a larger bench than eight judges).” Lawyer Abdul Moiz Jaferii describes the bench thus: “The Supreme Court has stitched together a bench which is notable for who it excludes rather than includes. It has then gone on to reach into the heart of parliamentary process and render comatose legislation which was yet to be birthed.”

Not everyone, however, agrees completely with the assessment that this is unprecedented. High court advocate Asad Jamal is of the view that “The SC has — in substance — done this before. They did not let the 18th Amendment take effect and then the Contempt of Court Act too was stymied. The NRO was also suspended through an anticipatory injunction.” Asking, “what’s new [in this]?”, Asad Jamal draws a parallel between the SC today and the SC led by Justice Iftikhar Chaudhry: “Today, the court led by Justice Bandial found it necessary to demonstrate judiciary’s power by issuing an express order of anticipatory injunction. The only difference between [previously] and now is that Justice Chaudhry did it with a full court which was called the Chaudhry Court, and now it is being done by the Bandial half court.” But Muneeb Farooq says that even the SC is aware of the limits: “If you look at Para 14 of the order, even the court acknowledges that it cannot — and it does not — suspend the operation of a law, and that too one that is not yet shaped into a law.”

Once again calling it an “unprecedented” exercise, he explains that the “concept of anticipatory injunction is not used in constitutional and legislative matters and is alien to the law-making process”, adding “the lawmaking exercise is the right and privilege of parliament. [A law] can be challenged in court once it becomes the law but you cannot pre-emptively tackle it.”

Hassan A Niazi says: “Going against settled jurisprudence on refusing to hear cases that are premature (comparisons with the Hisba bill case are erroneous in my opinion although the court doesn’t cite it), [the SC] suspends the operation of law yet to come into force. In doing so, it accepts that courts should not ordinarily do this. However, it gets around this by using the justification that has been the bane of Pakistan’s existence: this is an ‘extraordinary’ situation”. He adds: “Nothing good ever follows that word. This extraordinary situation is used to justify an anticipatory injunction. The rationale is that the independence of the judiciary is under attack. The fact that the law seeks to enhance the independence of judges from the discretionary powers of the CJP is of course ignored.” Telling The News “the order will further increase the existing divisions within the Supreme Court”, Niazi reiterates that for him “the use of ‘extraordinary’ circumstances to sweep away established judicial principles is key here and sets a dangerous precedent.”

For lawyer Abuzar Salman Khan Niazi, the word ‘extraordinary’ however helps explain the rationale behind the order. Calling it “an extraordinary situation”, he says that such “anticipatory or precautionary injunction is granted in extraordinary circumstances when fear of injury is imminent and irreparable.” While “the bench should have been larger — at least 12 judges”, in his view the SC Bill “alters the basic structure of the Constitution and was an encroachment into the independence of the judiciary.”

Lawyer Salaar Khan highlights the formation of the bench question: “The formation of the bench is also a matter of concern. Aside from the fact that if you can predict which judges exactly will be on an eight-member bench, it’s clear that certain judges have more of a conflict of interest in hearing this matter than others — particularly the chief justice and other future chief justices.”

Waqqas Mir adds that “Eight judges of the court got together and decided that the proposed law is an unacceptable assault on the CJP and the independence of the judiciary. This order is their latest reaction in an ongoing fight; it is the latest punch to assert space and appease its constituents. The silver lining is that we can hopefully now stop shying away from the fact that all apex courts are political institutions in that they make political choices and negotiate space with other institutions. Once we accept the political role of the court we can start debating the kind of politics we expect from a top court in a constitutional democracy. Safe to say the Supreme Court of Pakistan’s order today won’t be celebrated as a win for parliamentary democracy.”

The rationale the SC uses, says Moiz Jaferii, is that “[the SC] has done all of this on the premise that the exercise of a power to legislate procedure for the Supreme Court, a power that is enshrined in the Constitution, is an impingement upon the judiciary’s independence. It is an impingement according to our court not simply because of how it is being exercised today, but for how it could be exercised tomorrow if today’s attempt was to go unaddressed. Because as the SC quotes, the power to regulate involves the power to destroy.”

But, he adds, “There is another quote on power which comes to mind after having read this order. The internet tells me it’s attributed to Lord Acton. That power tends to corrupt, and absolute power corrupts absolutely.”

Muneeb Farooq too has a word of caution: “This is no longer a battle of law and Constitution but a battle of convenience and political expedience. Under CJ Bandial, the SC is trying to safeguard its turf. This is not about protecting the Constitution or the independence of the judiciary but about self-serving convenience.”