Between power and prestige

Chief Justice Mian Saqib Nisar has attracted attention of late – for mixed reasons. It started with his speech in Quetta on the first anniversary of the terrorist attack on the legal fraternity in which – while talking about Pakistan’s creation, he reminded us of the Two-Nation theory and said that one nation comprised the Muslims of the Subcontinent and the other he would not even like to name. The comment generated criticism on social media, and was seen to marginalise minorities of today, particularly the Hindu citizens of Pakistan. To be fair, the CJ may not have meant it in that sense. Besides, in a separate matter, he provided relief to Hindu temples, a step that was much appreciated.

One expected that after receiving harsh criticism for the Quetta speech, the CJP would avoid public speaking but he provided material for subsequent criticism as well – when he compared a good speech with the length of a woman’s skirt. Again, one feels that he may not have appreciated the connotation of his words. And, again it was felt that the issue would not have arisen had he avoided unnecessary speeches and public comments.

It is however the more recent tendency of being harsh in court proceedings, particularly toward government servants, which appears less defensible. And it is not just government servants on the receiving end; it was reported that the lawyer requesting adjournment on behalf of Aitzaz Ahsan had his licence suspended – until other lawyers pleaded with the CJP to recall the order. Now, if the licence was suspended for good reason, why was it restored on the intervention of other lawyers, and if it was correctly restored, which I believe to be the case, then why was it suspended in the first place?

In parallel, one has also seen a barrage of suo-motu proceedings by the CJP, which have motivated him (together with other members of the bench) to even visit hospitals and medical colleges in different cities, which is unprecedented. This too has invited criticism but the CJP has repeatedly declared that the constitution empowers him to enforce fundamental rights. It is worth noting here that amongst the most unnecessary actions initiated in this respect is the one concerning government servants holding dual nationality. While the constitution prohibits anyone who acquires dual nationality from being a member of parliament, there is no such bar in the constitution or in the Civil Servants Act regarding government servants. So why should the state machinery be used to ascertain who holds dual nationality?

Let me be clear, though. The constitution does empower the Supreme Court to take action in matters of public importance involving the enforcement of fundamental rights; and just about anything can be brought within that fold. This means that if the question is whether the Supreme Court is acting unconstitutionally by addressing issues concerning the management of public hospitals, for instance, then the answer may well be that it is not. But it is a different question whether this should be a priority when there is backlog of decades in the Supreme Court alone. Imagine a wicket keeper leaving his position unguarded to field at mid-off, because the fielder there has dropped catches. If we ask whether the rules of cricket permit that, the answer is yes. But is that the right approach to adopt?

Let me also be clear that I do not doubt the sincerity of the CJP and that he means to do good. In a recent interview, he said he wanted to be remembered like Justices Cornelius and Hamood-ur-Rehman. But he hopes to achieve this through holding free and fair elections (which isn’t his job) and by passing judgments that allow someone like Caliph Umar (ra) to come through (again a task best left to the electorate). Neither of the judges he named is known for anything other than writing good judgments.

But the issue is larger than Justice Nisar, whom I have known to be reasonable and measured ever since we were colleagues in his father’s law chambers in 1988. The issue is: if a CJ can develop misconceptions about his role and ability to fix the country, others who come to occupy this high office may also do so. This points to the need for structural reforms.

What gives the CJP pre-eminence over other judges of the Supreme Court is his ability to take suo-motu action, to form benches and to mark cases. He thus sets the field, like a cricket captain, which focuses the spotlight on him and also gives him a certain ability (through choosing judges to whom a matter may be marked) to influence decisions in important matters. It is perhaps human for a person vested with these powers for an extended period of time, burdened by the weight of his own expectations and of others, to start thinking of himself as a messiah; Justice Iftikhar Chaudhry is a case in point.

But these are not powers assigned to the CJP by the constitution. Even when the constitution refers to the enforcement of fundamental rights in Article 184(3), it only mentions the Supreme Court (which comprises the CJP and other judges). There is no special role assigned to the CJP. Indeed, when we look at the roles specifically assigned to the CJP by the constitution, it turns out that they are quite unglamorous in comparison (eg, to administer oath to other judges, to sit on the Judicial Commission alongside other senior judges and functionaries, etc). So how is it that the CJP gets to decide what matters to select under Article 184(3), and to create benches for issues coming before the Supreme Court? Those powers are conferred by the Supreme Court Rules. Article 191 provides: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.” Significantly, the rules framed by the Supreme Court do not take precedence over law, but are subject to it.

This means that parliament can make law regarding the practice and procedure to be adopted by the Supreme Court, which would be binding on the Supreme Court. Parliament could legislate, for instance, that instead of the CJP, a committee comprising Supreme Court justices on rotational basis would decide whether or not to assume suo-motu jurisdiction in matters involving fundamental rights, and also to form benches and to mark cases. There is no reason why any of these tasks must be performed by the CJP. In fact, this would allow the CJP to focus, like other judges, on deciding cases. Would such law amount to interference with the independence of judiciary? Not at all, considering that the powers would still be vested in the Supreme Court, and no one else.

I feel it is time to implement a structural fix of this nature, which may make the CJP less prominent but should enhance the prestige of the Supreme Court.

The writer is a Lahore-based lawyer. Email: salmanchima@gmail.com