Rule of law or men?

Back in September 2016, I used this title to celebrate the Supreme Court’s decision in the matter of Mustafa Impex, which for me affirmed that “rule of men is a bygone and our constitution prescribes rule of law.”

The SC had held that the federal government meant the prime minister and ministers, and only decisions reached in a consultative manner by the cabinet were to be regarded as decisions of the federal government. I had noted that, “there is no rhetoric in the ruling, no populism, no playing to the gallery. The court doesn’t bend the government’s ear as often happened in Justice Chaudhry’s SC. There is no judicial overreach.”

Mustafa Impex was authored by our CJP (senior puisne judge at the time). I had argued that, “his approach to [the] judiciary’s mandate is temperate, unadventurous and textual. In the 21st Amendment case he asked, ‘where lies the constituent power of the state (for that is the power by which the constitution is amended): with an unelected judiciary, although certainly acting with the utmost good faith and in the national interest, or with the chosen representatives of the people, even though they may not always come up to the expectations of the public? I would respectfully answer: with the latter rather than the former.’”

I had opined that, “his rulings suggest that to prevent abuse, power ought to be distributed and not monopolised.” I relied on the 21st Amendment case where he said that “conferment of exclusive and complete power on a single individual, whether he be a member of the executive or the judiciary, is surely less desirable then a meaningful, purposeful and consensus-oriented system…It is, in my opinion, a profound error to believe that every conflict or difference of opinion in the country must be subject to a judicial resolution. There are many questions of utmost importance best left to be decided through democratic modalities.”

I would submit that his approach to the law, manifest in cases he decided prior to his elevation to the esteemed office of CJP, bore out my assessment. Many of us, as students of law, have struggled to reconcile his conservative and thoughtful approach to the constitution and Article 184(3) and concepts such as separation of powers and judicial restraint with his actions as the CJP (since November 2017).

By the end of CJ Iftikhar Chaudhry’s tenure and the constant public eye on Court No 1’s proceedings suo motus and trials, the country seemed tired of it all. CJs Tassaduq Jillani and Nasir-ul-Mulk brought sobriety back to SC proceedings. We saw an SC not interested in seeing media attention focused on it as a saviour at the centre of national policies. That was a very welcome change, which cannot be said to have lasted.

With 45 days left of his tenure, the time to assess the CJP’s performance will be upon us soon. But at the heart of any discussion regarding the SC’s role in our polity going forward is the scope of Article 184(3), which states that, “Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article”. Has the SC’s approach to 184(3)/suo-motu powers led to judicial overreach by CJPs?

In Mustafa Impex, CJP Saqib Nisar held that, “Article 90 states categorically what the federal government is; it consists of the prime minister and the federal ministers (ie the cabinet) and not the president who is not mentioned therein (we note, in passing, the similarity with Articles 176 and 192 which respectively define the Supreme Court and the high court as consisting of the chief justice and judges).” It is interesting that he used the definition of the Supreme Court to affirm that just as the chief justice doesn’t comprise the SC all by himself, the PM doesn’t comprise the federal government.

A natural corollary in the 184(3) context is that the constitution vests this power in the SC and not the CJP. The constitution doesn’t elaborate any further how the 184(3) power is to be used. The Supreme Court Rules are silent as well. If efforts by the PM or ministers to make decisions that are to be made by the federal government are invalid, how is exercise of the 184(3) power by the CJP (when it belongs to the SC) valid exercise of 184(3) powers? This is too obvious a point to belabour. The CJP had announced during the new judicial year ceremony in September this year that the 184(3) matter will be taken up on the judicial side. It has not happened so far.

There are at least three problems with how the 184(3) power has been deployed. One, it makes indistinguishable the distinction between rule of law and rule of men. If the constitution abhors monopolisation of executive authority by an elected PM, it certainly doesn’t endorse monopolisation of judicial authority by a CJP. The administrative functions of the office of CJP are ancillary to the judicial functions of the court. Should the personal convictions and motivations of incumbent CJPs (as opposed to legal texts) determine judicial agenda, the scope of the SC’s power and the manner of its exercise?

This then does two things. It makes the judiciary a hierarchical organisation with the CJP at its executive head exercising administrative control over high courts. This isn’t the structure envisaged by our constitution, which grants administrative autonomy to provincial high courts in our federation in order to protect the vertical independence of the judiciary. Exclusive control over the SC’s powers and their exercise by a CJP without involving all other SC judges can make brother judges look like subordinates. This tends to dilute the horizontal independence of judges from peers.

Two, a CJP-driven 184(3) makes this power personal as opposed to institutional. It undermines the idea of rule of law and due process. As apex court, the SC sits atop the hierarchy of courts, making it ‘infallible because it is final’, but in a system where a three-member bench headed by a CJP takes up matters suo motu, requiring little assistance from counsel, decides matters and rejects reviews, the final outcomes don’t appear dispassionate.

Individual power is vulnerable to arbitrariness and induces uncertainty, as opposed to what rule of law promises. The judicial arm is meant to guard the state and its citizens against arbitrary actions of the executive arm. But if the judicial arm’s power and functions are seen as driven by arbitrariness, who will guard against that? We will have seven CJPs over the next decade. What if dams or population control don’t enamour the next CJP and the ones after him, and they have other policy choices in mind that they would wish to pursue?

And three, judicial overreach undermines executive authority. This isn’t about whether the PTI is power or the PPP or the PML-N. The vacuum theory, that other state institutions should step in because the executive or legislature doesn’t perform, is neither convincing nor not self-serving. The populist saviour model hasn’t worked. Suo-motu identification of problems hasn’t led to sustainable solutions. The cathartic model (elites exposing and ridiculing lesser elites in the name of the underprivileged) incites anger not reform. For the system to work, each component must focus on its own job and not that of the others.

Let us hope that the SC can clarify to itself and the rest of us the scope of its suo-motu powers sooner rather than later.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu