New judicial year

The ceremony marking the new judicial year in September provides an opportunity to flag the achievements, regrets and aspirations of the Supreme Court.

The speech given by Chief Justice Khosa has made headlines – and rightly so. Parts of it that highlight the truncated state of our fundamental rights and liberties are pure gold. He has been able to articulate what many of his fellow citizens feel but are unable to say. Not because they don’t want to speak the truth that matters, but because they can’t.

But there are also questions that come to mind, and dampen the spirit. One, are the views expressed and policy choices emphasized by Justice Khosa those of the incumbent CJP or those of the SC? Two, are speeches the most potent instrument reflecting the judiciary’s mindset or does the jurisprudence produced by the SC also reflect and address concerns raised by the CJP? The third question relates to the state of fundamental rights.

The first question is relevant because chief justices are appointed on a seniority basis and the tenure doesn’t last more than a couple of years (given how long it takes to rise up in the hierarchy). Former CJP Saqib Nisar delivered the last new judicial year speech at a time when he was raiding hospitals and bending everyone’s ear over the Dam Fund; and for a while it almost seemed like Pakistan was being run from Court No 1. What CJP Khosa calls ‘active judicialism’ thus stands out in contrast to the populist activism unleashed by CJP Nisar, his predecessor.

But CJP Khosa retires in a few months and we will probably see four CJPs over the next five years. So the question is: will the CJP’s speech remain relevant post December 2019 as an embodiment of the SC’s institutional thinking? At the last new judicial year speech, CJP Nisar had declared that the SC had finally decided to enumerate the contours of Article 184(3) and its suo-motu powers as a judicial matter, and that a bench would be formed soon for the purpose. They remained unfulfilled.

Now we have been told that the SC will take up the issue soon as an administrative matter in a full bench meeting. Unguided discretion in relation to Article 184(3) and to constitute benches, draw up cause lists, and determine how the SJC will function etc are some of the means CJPs opting to don the saviour cloak and wishing to asset the power of their office are drawn to. To frame objective judicial tests for exercise of Article 184(3) powers, and structure administrative discretion vested in the office of the CJP would mean regulating and curtailing arbitrary power.

Rule of law (commitment to which was reiterated by the CJP in his speech) requires legal certainty and by extension curtailment of arbitrary or hard discretion whereas few are immune to vanity and desire for power. We have seen many, like CJPs Iftikhar Chaudhry and Saqib Nisar, playing to the gallery as if it were their job. Is the SC ready and willing to regulate the discretion vested in the office of the CJP as opposed to leaving it to the volition and personal preference of each incumbent?

The second question is whether the SC’s recent jurisprudence reflects the concerns raised by CJP Khosa in his speech. “In recent times the leadership of the Bar has repeatedly voiced its concerns over receding political space in governance of the state and such concerns must not be ignored”, said the CJP. “As an important and independent organ of the state responsible for safeguarding constitutional ethos of the country we feel that such loss of political space in governance of the state may not augur well for the future of the country as a constitutional democracy.”

On the accountability process (being run by a former SC judge, and overseen by the judiciary itself) the CJP’s observations were telling: “We as a relevant organ of the state also feel that the growing perception that the process of accountability being pursued in the country at present is lopsided and part of political engineering is a dangerous perception and some remedial steps need to be taken urgently so that the process does not lose credibility.”

The CJP didn’t hold back on the issue of shrinking civil liberties either: “Voices being raised about muzzling of the print and electronic media and suppression of dissent are also disturbing… a voice suppressed or an opinion curbed generates frustration, frustration gives rise to discontent and increasing discontent poses a serious threat to the democratic system itself. Constitutionally guaranteed rights of citizens ought never to be compromised for the sake of short-term political or governance advantages. Democracy requires… tolerance for dissent…”

Who can disagree with the CJP’s words and the wisdom they encapsulate? Coming from the head of the institution designated by the constitution to enforce the law and fundamental rights, and to act as a check on abuse of the state’s executive authority, they can be disconcerting. Freedom of speech, of association, the right to dignity, to due process of law and equal protection of law are all fundamental rights. If defenders of rule of law and fundamental rights are compelled to mention intolerance and diminishing political space, what does it say about the current state of affairs?

While the CJP is alive to public perceptions about the lopsided accountability process, unflattering perceptions about the judicial process have also shaped up over the years. The Panama case raised questions about the scope and manner of exercise of Article 184(3) powers (especially after the SC registrar returned the petitions as non-maintainable) as well as due process and fair trial rights guaranteed by Article 10-A. The opportunity to clarify the law was unfortunately lost. Panama set the tone for the accountability drive now on.

The SC created room for grant of bail in accountability matters in the Asfandyar Wali case through interpretation of legal texts. And we have now seen that room being closed through interpretation, making bail near impossible in accountability cases. The judicial approach to Articles 62/63 is also relevant to the question of political space. Contrary to the past when Articles 62/63 were not deemed strictly enforceable, there have beenjudgments justifying strict enforcement on account of parliament not removing them from the constitution and thus forcing the judiciary’s hand.

The SC had a unique opportunity to determine the scope of freedom of association under Article 17 when the matter of disqualified persons heading political parties came up for adjudication. Here the SC rendered a judgment contrary to past precedent, read down Article 17, read into the Election Act 2017 what wasn’t there and truncated freedom of association. We then had a Senate election in which candidates from the ruling party had to participate as independents just because their tickets had been issued by a disqualified party head.

The CJP is on the dot when he says that there has been a contraction of rights and freedoms, a rise of repression and a growing sense of lack of fairness pervading our polity. There is need for much introspection for all of us and all around.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu