Situationer: SC seen to be intruding into other domains like never before

ISLAMABAD: For the first time in the history of Pakistan, the Supreme Court is blamed for intruding into the domains of high courts, parliament, executive and the Election Commission of Pakistan (ECP) at the same time.

Judges within the SC have pointed out in their recent ‘dissenting’ notes that the SC’s suo motu on Punjab and KP elections has undermined the independence of the high courts in the provinces.

The Chief Election Commissioner (CEC) complained that the commission’s powers have been eroded by the apex court decisions; parliament also found the SC taking away its constitutional authority to legislate whereas the government was also upset over the highest court’s interference in the executive affairs.

In his recent decision, Justice Athar Minallah noted, “It is not disputed that the Lahore High Court has already allowed the petitions and rendered an authoritative judgment and its competence to have it implemented cannot be doubted. The Peshawar High Court is also seized of the matter. In the light of the binding ‘salutary principles’ discussed above, the petitions and the suo motu jurisdiction must not be entertained lest it may interfere with the implementation of the judgment of the Lahore High Court and the proceedings pending before the Peshawar High Court.

“The premature and pre-emptive proceedings before this Court at this stage is likely to delay the enforcement of the judgment of the Lahore High Court, leading to infringement of the Constitution by exceeding the time frame prescribed ibid. This is also obvious from the opinions of my learned brothers Syed Mansoor Ali Shah, Yahya Afridi and Jamal Khan Mandokhel, JJs who have also dismissed the petitions and on this ground, i.e., pendency of the same matter before two competent High Courts.

“Moreover, any person who would be aggrieved from the judgments of the High Courts will have the option to exercise the right to invoke this Court’s jurisdiction under Article 185 of the Constitution. In the facts and circumstances of the case in hand, it is not a ‘genuinely exceptional’ case to deviate from the binding salutary principles. By entertaining the petitions and suo motu jurisdiction, the Court would be unjustifiably undermining the independence of two provincial High Courts. The indulgence at this stage would be premature and it would unnecessarily prejudice public trust in the independence and impartiality of this Court. This Court has no reason to apprehend that the High Courts are less competent to defend, protect and preserve the Constitution.”

Chief Election Commissioner Sikandar Sultan in a recent letter written to Chairman Senate and Speaker National Assembly pointed out that the SC’s judgments of March 1 and April 5 have divested the ECP of its constitutional powers to determine as to whether conducive environment in facts and circumstances, exists for the conduct of polls in a given time, to meet the standards mentioned in Article 218(3).

The CEC also mentioned that the electoral body has consistently strived to uphold the writ of law, fair play and merit in letter and spirit. However, he lamented that the commission’s writ has been systematically challenged on several occasions. “In practice, ECP’s authority has been eroded,” the letter stated. Parliament was upset over the Supreme Court’s decision of staying a future law during its processing by parliament. The National Assembly passed a resolution, a few days back, stating that the order of the eight-member bench was contrary to the Constitution and law. It added that issuing the stay order against the implementation of the judicial reform bill was interference in parliamentary affairs.

Terming the court order “another dark chapter in the country’s judicial history”, the resolution vehemently rejected “the aggressive attempts of the Supreme Court” to take away the constitutional authority of parliament to legislate.

The resolution stated, “Neither this authority [of enacting legislation] can be usurped nor interfered with. Nobody is allowed to interfere in the affairs of the other.” It said, “Parliament has all the powers to approve or disapprove the budget, financial bills, economic matters and the release of resources. No one can take away, suspend or revoke this power of parliament.”

The government is also found protesting against the Supreme Court’s orders, which the executive sees as an interference in its domain. Interior Minister Rana Sanaullah sounded offended by the three-member Supreme Court bench’s direction to the State Bank of Pakistan to transfer Rs21 billion to ECP.

The interior minister said that now the Supreme Court was directly handling the executive’s power. He said sarcastically now the Supreme Court should also make the budget.