Pakistan has been passing through interesting times. The country has seen the pinnacle of judicial activism through the suo-motu-notice invoking process which was lately sprung by the Chief Justice of Pakistan, Mr Justice Umar Atta Bandial.
Over the years, judicial activism has caused more harm than it has yielded benefits. In the name of protecting fundamental rights, all holes and tunnels were drilled into the law to manipulate politics– to favour one political party against the other. Personal whims and wishes of the CJP got expressed in judicial activism trespassing on the domain of the executive, which kept on adjusting itself to judicial expediency.
The LHC administration does not think it obligatory to tell the reason for not following its own announcement. The situation is so gravely deteriorated that the litigants cannot file any civil miscellaneous application to get their cases back to the hearing queue. There is a huge backlog of cases to be heard by the CJ LHC, but he is ansideswerable to none. On the other hand, if a case of political relevance is filed today, day-to-day hearing of the case is started tomorrow onward in the same court which is otherwise denying access to common non-political litigants
In political matters, the CJP office did two acts. First, the office started interpreting law anew making the interpretation tantamount to re-writing the Constitution. Second, the office assumed the status of an ultimate arbiter who headed a Jirga to settle political disputes.
On March 30, the Senate passed the Supreme Court (Practice and Procedure) Bill 2023, which sought to regulate the power of the CJP, who used to take a suo motu notice in an individual capacity. The Cabinet had approved the Bill on March 28 and the National Assembly had passed it the following day with the suggested amendments. The judicial reforms stipulated by the Bill were long overdue. Now, the President is left to sign the Bill to make it an Act of Parliament.
The suo motu notice had become a political instrument in the hands of the CJP to prod the whole system in one chosen direction in the name of serving the cause of protecting fundamental rights. The Bill has heralded the fact that the age of enjoying discretionary power, especially in an individual capacity, is over. Enough is enough. Why should citizens keep on paying taxes which are channelized to pay salary, perks and privileges of the judges, who serve the citizens (litigants) less and play a political role more? The leeway had offered certain judges, especially the office of the CJP, to play a political role. The margin is now obliterated.
Over the years, courts had become a hub of political make-and-break. Through their discretionary powers, the office of the CJP could even topple a sitting government. Judges played politics, both inside the judiciary (by constituting one kind of bench) and outside the judiciary (by issuing one kind of decisions favouring a required candidate). Some judges crossed the limit to become political judges, dancing to the tune of the Army and even a political party.
The Bill has proposed to form a committee comprising the CJP and two senior most judges in order of seniority to decide by majority what matter is of public importance to be taken up through the suo motu notice or on any writ petition. Similarly, the Bill has discarded the practice of bench fixing through proposing to form a consultation committee which would determine by majority which judges should sit down together to hear cases and what kind of cases would be placed before them for hearing.
The Bill has also provided for an appeal to be filed against the final order issued under Article 184(3) and that the appeal would be fixed for hearing before a larger bench of the Supreme Court within 14 days. At this stage, the aggrieved party would defend its position through its legal counsel
Unfortunately, the Bill is still short of meeting the challenges offered by the lopsided higher judiciary. For instance, former CJP Justice Saqib Nisar issued skewed verdicts against the then sitting government and tried to balance his acts through opening the vista of public welfare works. He used to visit Services Hospital Lahore and would show his concern in the disposal of garbage of the hospital, but he never visited the LHC to improve its function.
Unbridled powers vested in the office of the CJP instigated one political crisis after another. The same powers along with the attitude of hubris travelled down to provincial high courts, which preferred to hear political cases first even on a daily basis, by pushing the issued cause lists aside. Even today political cases take precedence over regular routine cases. The result is the delay in hearing the latter. Both the Islamabad High Court (IHC) and the Lahore High Court (LHC) still do this malpractice. It is as if the courts were meant for political adjudication.
The situation of the LHC is so pathetic that lists of cases meant for hearing are cancelled by public announcement (through text messages) that the case hearing list would be resumed soon, but that does not happen. The pledge to restore the list afterwards is just a public stunt– to befool the litigants. Nothing is delivered on the ground. Is it not the fundamental rights of citizens (litigants) to be heard by the court?
A case study is that on November 28, the LHC announced to cancel the list of hearing of cases which were fixed for the next day in the court of the Chief Justice, Mr Justice Ameer Bhatti. The list has not been restored till today after the elapse of four months. Is this performance of the LHC to show which, it consumes millions of rupees of taxpayers’ money every month?
The LHC administration does not think it obligatory to tell the reason for not following its own announcement. The situation is so gravely deteriorated that the litigants cannot file any civil miscellaneous application to get their cases back to the hearing queue. There is a huge backlog of cases to be heard by the CJ LHC, but he is answerable to none. On the other hand, if a case of political relevance is filed today, day-to-day hearing of the case is started tomorrow onward in the same court which is otherwise denying access to common non-political litigants.
Expressed through preference, the political inclination of the LHC has beleaguered the political atmosphere of Punjab. The point is simple: discretionary powers of the CJ have ruined both the legal sphere and the political domain. The fundamental right of citizens (litigants) to be heard founders on the pro-political preference of the LHC. Can any Bill address this aspect?
Through a video, which was released, the confessions and revelations made by Muhammad Khan Bhatti, the principal secretary to ex-Chief Minister of Punjab Chaudhry Pervaiz Elahi, impugned the credibility of the higher judiciary. The video issued two serious allegations: first, benches are contrived in a way to dispense a kind of decision: and second, judges are managed from outside the courts. The Bill addresses the first allegation but not the second.