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Huzaima Bukhari & Abdul Rauf Shakoori
The pronouncement of ruling by Deputy Speaker on April 3, 2022 rejecting the no-confidence motion, moved by the combined opposition parties, and dissolution of the National Assembly by the President on the Prime Minister’s advice, was examined by a five-member larger bench of the Supreme Court of Pakistan, headed by the honourable Chief Justice of Pakistan and declared ultra vires of the Constitution of the Islamic Republic of Pakistan [“the Constitution”]. Legal experts earlier termed the Speaker’s action unconstitutional resorting to Article 5 of the Constitution. The landmark judgement of April 7, 2022 by five-member bench of the Supreme Court of Pakistan buried the Doctrine of Necessity once for all.
The combined opposition declared the act of Deputy Speaker subversion under Article 6 of the Constitution and demanded trial of the Prime Minister, Law Minister, and Deputy Speaker. The ruling thigh was held justiciable by the apex court, yet it refrained to comment on the applicability of Article 6 of the Constitution—the decision, thus, set the direction for running the affairs of the state for future governments.
Historically, the role of Supreme Court has been under question and the conduct of judges doubted in Pakistan due to their alleged compromised decisions. Recently, the senior-most judge of the Supreme Court, Justice Qazi Faez Isa, in a letter addressed to the Chief Justice, raised concerns related to the formation of the benches and direction to fix a reference by the President yet to be filed. He also highlighted the compromised role of the apex court of Pakistan’s registrar as well and termed it against the spirit of independence of judiciary due to his affiliation with administrative services. However, the Chief Justice of Pakistan defended his position holding that these concerns are not well-founded as assigning the cases and forming the benches is an administrative function and preferred to carry on with the same junior judges to decide the suo moto action involving a most crucial question of law.
Apart from these concerns, members of the larger bench and the Chief Justice of Pakistan need to demonstrate that a strong and effective judicial system is the backbone of any country and in the same vein, the judicial system of Pakistan is an important limb of the state and it must be robust, transparent, independent, and accountable. In terms of the constitutional mandate, the Supreme Court can protect our most important fundamental rights, control crimes, build confidence for investors, ensure economic growth, and define supremacy and rule of law including the roles of all lower courts. However, in the last few years, judges’ behavior shows that they are beyond accountability and less transparent as well.
Before the lawyers’ movement which was considered a turning point in our judicial history, examples set by the higher judiciary regarding their role are not encouraging. The people of Pakistan were hoping to see its independent role but in the last few years, their trust in judiciary has dwindled. Various bar councils also raised concerns and their representatives openly criticised the judges related to matters directly linked to the apex court such as the appointment of junior judges in the Supreme Court ignoring the rule of superiority, constitution of benches, and involvement of top judges in administrative matters.
It is a fact that the court’s deviations from the assigned scope and powers defined under the law create unrest in the country. Unfortunately, this practice has undermined our image as a nation in the global community and impacted our social, political, and economic standing. When judicial activism leads to courts deviating from their assigned roles based on political or personal preference, the main drawback is that their decisions set precedents for lower courts.
Unfortunately, the political parties have not taken any serious steps to introduce measures despite Pakistan’s top political parties under the leadership of Mohtarma Benazir Bhutto and Mian Muhammad Nawaz Sharif having signed the Charter of Democracy and agreeing to bring about judicial reforms in the country. Though they agreed on various points, including the appointment of judges and diminishing the role of those judges who took oath under the Provisional Constitutional Order (PCO), yet while introducing the 18th Constitutional Amendment ignored amendments relating to PCO judges. Also no independent mechanism was provided for maintaining transparency and accountability of the judges.
Since the actions of April 3, 2022, the country is facing a grim constitutional crisis. There is no functional government—this is leading to unrest in the country. The fate of the ruling is yet to be decided. On economic front, the country is facing daunting challenges. The International Monetary Fund (IMF) has suspended the ongoing programme with the resolve for helping in achieving stability once the new government is installed. Pak rupee value is in decline mode since the last week. Date for the announcement of new budget is approaching and there is no one who can take the responsibility to address concerns related to budget deficit and balance of payment. All these issues are linked to the decision of the Supreme Court. However, the way forward is that whosoever forms the next government, should first revisit the ambiguous provisions in the Constitution and address these to avoid any future crisis. Moreover, the new government should also address the issues of appointment, removal, formation of the bench, and suo moto powers available with the Chief Justice of Pakistan considering international best practices.
Keeping in view our past history, it is time for Pakistan to raise its judicial standards. Our judicial system still fails to honour basic human rights, political opponents are victimised, and dissenting voices put behind bars for years in utter violation of their fundamental right to a fair trial available under Article 10A of the Constitution. Beyond domestic abuse, these injustices affect Pakistan’s standing in the world. A glance at the global index for the rule of law and the World Justice Project (WJP) report shows that Pakistan is listed at the bottom-performing country, rating our judicial system at 130 out of 139 countries. Their report analysed effective investigations, timely and effective adjudication, due process of law, effective enforcement, government influence in judiciary, etc.
Without improving our judicial system, we can never the status of a respected state, nor can we attract foreign direct investments. Our honourable judges need to review their performance, conduct, and the quality of justice they are providing to us. Can we aspire to rub shoulders with highly respected judiciaries like Denmark, Norway, and Finland on the WJP index or will we remain part of the underperforming club maintaining our current position?
Pakistan is one of those countries where the people have paid a huge price for independence of judiciary. The historic lawyer’s movement that was supported by the public, civil society, and the media succeeded in undoing the actions of a dictator. After restoration of the judiciary, people hoped that hence onward they would witness an independent role of judges and judiciary as a whole and their concerns would be addressed in the light of prevailing laws and the Constitution of Pakistan. These expectations emerged in a country where the courts were known for justifying abrogation of the constitution, executing political opponents of dictators, facilitating them to strengthen their rule.
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Huzaima Bukhari, Advocate High Court & Adjunct Faculty at Lahore University of Management Sciences (LUMS), is a member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE). Abdul Rauf Shakoori is a corporate lawyer based in the USA and an expert in ‘White Collar Crimes and Sanctions Compliance’. They have recently co-authored a book, Pakistan Tackling FATF: Challenges and Solutions, with Dr. Ikramul Haq