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Legal Eye

May 12, 2018

Limits of court powers?


May 12, 2018

Concerns about the Supreme Court’s renewed and ardent enthusiasm for its suo-motu powers and the manner of their exercise under Chief Justice Saqib Nisar (since last November) are growing.

CJ Nisar has had an exceptional career as a jurist. He is regarded as one of the most clear-headed, law knowing and brilliant judges we have had. The jurisprudence he has produced speaks for itself. But his excessive reliance on the SC’s 184(3) powers half way into his tenure as CJ has come as a surprise and is raising questions about our scheme of separation of powers.

I first met CJ Nisar in SC back in 1997 when he was law secretary and my father, Mian Tariq Mehmood, a deputy attorney general. They along with Justice Asif Khosa and others were elevated as judges of the Lahore High Court in 1998. A few months later, my father passed away. But Justice Nisar has always recalled the memory of my father fondly, patronised me and told me that he regards me as a son. As I was enrolled as advocate of the Supreme Court only last December, I didn’t have an opportunity to appear in his court till a few months back.

I started writing after I got my first job as assistant editor of The News in 1998 and began a weekly column in 2006. Its focus was the crisscross between law, politics and society as by then I had trained as a lawyer. CJ Nisar has always offered unreserved support for my right to speak my mind even when critique of judicial decisions or conduct irked some on the bench. The first such incident transpired in July 2013 during CJ Iftikhar Chaudhry’s heyday. I had written an article (‘Hubris as justice?’) that critiqued the then CJP’s exercise of suo-motu powers.

I had written: “at the risk of offending the mighty lords (and one’s livelihood as a lawyer), a few traits are evident in the manner our apex court has conducted itself since Chief Justice Chaudhry’s restoration that raises concerns about the quality of justice being meted out: populism; overt moralism; appropriation of functions of other institutions; and subjectivity injecting lack of consistency in the law being developed.” The article was widely shared and Kamran Khan also discussed it on two consecutive days on his very popular 10 pm show on Geo.

CJ Chaudhry wasn’t happy and there were rumours that I would be issued a contempt notice. CJ Nisar, then an SC judge, called me and inquired if I had been issued a contempt notice. I told him I hadn’t received one yet. He said he had seen my piece and there was nothing wrong with it. And if I was issued a notice I should remember that he was my father’s friend and would stand by me unhesitatingly as I had a right to express my opinion. He stood for my right to speech, conscience and stating the truth (as I understood it).

In 2016, I wrote a piece on judicial appointments in Khyber Pakhtunkhwa and was issued a contempt notice. As I planned to defend what I had written I went to seek Justice Nisar’s advice, who at the time was senior puisne judge at the SC. I told him that I didn’t mean to offend the judiciary and couldn’t conceive doing so as an officer of the court. But what I had written wasn’t incorrect and I wished to defend myself. Justice Nisar told me that I had critiqued one of his judgments too but he wasn’t displeased as he supported the right to temperate critical opinion.

I went to see CJP Nisar a few months back. After inquiring about my mother’s health and recalling my father, as he always does, he told me that he was aware that I hold and express critical view about some of his actions. (Previously, we had had discussions, before he became the CJP and after, about the need for 184(3) powers to be structured). Then he told me unequivocally that anyone who thinks he would take offence to reasoned critical view about his actions and decisions doesn’t know him at all, and encouraged me to continue to say what I believed in.

During the hearing of a media-related matter a few weeks later, he asked me in open court if he had ever scolded me for critiquing the SC’s actions, and that I should acknowledge the same loudly and openly so everyone knows that temperate criticism isn’t disallowed. It is due to these experiences and reassurance from none other than the CJP that one is able to ask questions about the SC’s actions, not as a partisan voice seeking to malign the court, but as a vociferous supporter of rule of law and due process that are the only guarantees against arbitrariness and rough justice.

As a student of law the following question come to mind. Should the scope of Article 184(3) power and the manner of its exercise depend on the personal preferences of each incumbent chief justice or should there be certainty about the scope of such constitutional power? And who is to exercise it and how? In a momentous decision by CJ Nisar, he held that Article 90 defines federal government to mean the PM and ministers, and so decisions taken in the federal government’s name must be taken by the cabinet and not the PM or a minister individually.

Similarly, Article 176 states that the SC comprises the chief justice and judges of the SC. Article 184(3) powers are powers of the SC and not those of the CJ. Isn’t it time that a bench comprising all SC judges decided on the judicial side the scope of 184(3), the test for matters of public importance in relation to enforcement of fundamental rights that will be taken up by the SC in this jurisdiction, and the nature of orders to be passed? This will inject certainty into law and ensure that the scope of 184(3) doesn’t depend on the personal sensibilities of a CJ?

Article 175(2) states that courts only have such jurisdiction as conferred by the law. As a matter of past practice, we have not seen judges touring hospital or colleges. There is a well-established practice of appointing local commissions to ascertain facts and report them to court if need be. But administering provision of services is a quintessential executive function. Courts exercise their judicial review power to determine the legality of executive actions, without stepping into the shoes of decision-makers. Wherefrom is the SC deriving the authority to tour hospital?

If such power is vested in the courts, shouldn’t high courts be providing similar oversight in the provinces – and, in not doing so, have they abandoned a duty? And if direct oversight over execution of executive functions is a judicial duty, aren’t we altering the constitutional scheme of separation of executive and judicial roles? If courts are to delve into the wisdom of executive appointments, policy decisions, tax schemes etc, won’t taking away the power that goes with responsibility cripple the executive, even when controlled by the most well-meaning public officials?

What is the relationship between high courts and the SC? Are high courts under the SC’s administrative control? Is it in exercise of its Article 184(3) powers that the SC is ordering composition of high court benches? And what cases will they hear? In doing so is the SC assuming control over powers vested in high court CJ’s? Will such actions strengthen the autonomy and efficacy of high courts?

Is it the function of a court, as impartial arbiter of law, to express an opinion over which a party should or should not be represented by a conscientious counsel? And why must the SC make a practice of ordering personal appearance of individuals in civil or constitutional matters when they are represented by counsel? Does passing strictures against individuals in court prior to the decision of their cases (which then dominate the news cycle) strengthen the majesty of the law?

It is only with a view to strengthening the rule and certainty of law and splendour of our court system that one takes the liberty of flagging such concerns, with the knowledge that a CJ not as magnanimous as CJ Nisar might take offence.

The writer is a lawyer based in Islamabad.

Email: [email protected]

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