For the last decade or so, Court Room Number 1 where the Chief Justice Pakistan (CJP) sits is in the spotlight. It has seen brief periods of judicial restraint exercised by a few CJPs but it is largely in the news for demonstration of judicial activism -- manifested in the suo-motu powers granted to the Supreme Court under article 184 (3) of the constitution.
Many jurists and senior members of the legal fraternity see in suo motu powers a violation of judges’ code of conduct and centralisation of power by the office of the CJP. They want a review of this power by this office.
"The chief justice should act as a primus inter pares (first among equals). He should ensure administrative efficiency of the Supreme Court and make sure the court and its benches deliver "expeditious justice" as required by the Principles of Policy contained in Article 37 of the Constitution," says Khwaja Ahmad Hosain, a senior lawyer based in Lahore.
Hosain says the [office of the] CJP currently enjoys absolute powers regarding the constitution of benches and assignment of cases to various benches. "This power should be diluted by including two senior-most judges of the Supreme Court."
He refers to the impression of partiality and practice of humiliation of counsels or parties appearing before the Supreme Court. "The Supreme Court should not attempt to be populist. It has a duty to apply the law even where such a decision would be unpopular. Regrettably, these principles were not always followed by Chief Justice Saqib Nisar during his tenure."
Going two steps ahead of former CJP Iftikhar Chaudhry in terms of transgression into executive matters, Nisar too visited hospitals, initiated campaigns to control population and build dams rather than focusing on judicial reforms.
Qazi Muhammad Anwar, former president Supreme Court Bar Association (SCBA), says that Article 184(3) of the constitution does not only give this power to the CJP but also to the entire Supreme Court. He urges the need to review the gradual centralisation of power by this office and hopes "the new CJP would consider these matters important and form a committee regarding suo-motu powers. Such matters, if needed, can also be placed before a full court to review the performance and role of the Supreme Court".
Anwar recalls how the judicial activism gained force with the restoration of Iftikhar Chaudhry as CJP, "even though the Lawyers’ Movement was meant for the entire judiciary. The role of a chief justice is only administrative -- to form benches and approve cause lists and not assuming the powers of the executive by overly exercising suo-motu powers".
Former president Supreme Court Bar Association Barrister Syed Ali Zafar does not agree with Anwar and sees CJP Chaudhry’s time as an aberration. "Barring that period, there was a trend of judicial restraint till the Panama Papers scandal.
"There was no mentionable interference in the executive and political affairs and governance after Justice Chaudhry. This activism began when there were verbal (political) attacks on judiciary in the background of Panama case and a turbulent time began amid high profile political cases."
Zafar is of the view that we do not control the exercise of suo motu power by the CJP, "it might affect the dignity of the superior judiciary and become a [source of] clash between the institutions."
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To a question about the overly-centralised power of this office with regard to control, appointments and exercising authority, Zafar opines that other judges have a role too. "If they continue to tolerate this centralization, then obviously a chief justice will become their boss. There is need for internal democracy within the SC." He hopes the new chief justice will review such matters, particularly the public exposure of his office.
Anwar too thinks such use of power and exposure by a chief justice is not justified and is clear violation of code of conduct. "This code, it seems, is merely on paper and is not regarded anymore by this august office," he says, adding that the accountability mechanisms and supervisory bodies for the judiciary and bar councils have also become ineffective.