Making the mare go

The Supreme Court is going into uncharted seas


The Supreme Court is used to having its orders obeyed. Lower courts are also used to this, but can be reversed by a higher court. There is no higher court than the Supreme Court. Therefore, if a high court refuses bail to a criminal accused, the Supreme Court may grant him bail, and whereas the high court had adjudged that he stay in jail, he would walk out of court a free man. However, if the Supreme Court refuses him bail, no one can, except perhaps the President. That is why when the Supreme Court has confirmed a death sentence, a mercy petition by the convict is routinely made to the President, as routinely refused.

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Therefore, in the midst of the current battle, one sidelight must be the unease of their lordships at being defied. This may have meant that their lordships may have attempted something not been attempted, passing an order which cannot be implemented.

The three-member bench which heard the case of the KP and Punjab Assembly dissolution had refused to accept the ECP claim that it lacked the Rs 20 billion it had asked the Finance Ministry for, or the approximately 300,000 security personnel it needed. While addressing the issue of funds, it came up with a solution that was potentially dangerous. It ordered the State Bank of Pakistan to take the money from the Federal Consolidated Fund and credit it to the ECP, under intimation to the Finance Ministry.

The State Bank is the government’s bank, just as any commercial bank may be an individual’s. Will the Supreme Court intervene in a bank’s operations and order it to transfer funds from one person’s account to another’s? A harsh word to use for that would be theft, a milder expropriation.

The other alternative would have been for the Supreme Court to order State Bank to print the money. Then it might have had to supervise the necessary open market operation, or OMO, needed for the notes to be brought in circulation, again under intimation to the Finance Ministry. Again, the State Bank’s client, the government, would have been a silent spectator to a transaction carried out in its name.

The government is not giving the ECP the money because it claims it agreed the budget with the IMF, and a reappropriation that big needed parliamentary passage. As a matter of fact, since the amount was not passed in the last Budget, the normal procedure would be for the Finance Ministry to instruct the State Bank appropriately, and to get the change passed as a grant in the supplementary budget, which is passed before the budget itself.

It should be noted that the supplementary budget does not involve raising new funds. That is done by Finance Bills after the Budget. It does involve raising the spending limit approved earlier. Where has the money come from? Maybe some other department has surrendered money, or maybe that department has itself foregone some expenditure which was approved. The Finance Ministry must approve that reappropriation.

The Supreme Court should pause and realize that power belongs to the people. True, half the National Assembly is empty, but that is because members resigned voluntarily. What remains of the National Assembly must be considered the repository of sovereignty. After all, the judiciary only exists because its members are recruited by a process which involves a Judicial Commission involving Parliament.

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If, for example, a department decides to forbid the purchase of one newspaper, it would save a certain amount from the grant passed for the National Assembly for newspapers and periodicals. It might order another newspaper instead, so long as it remained within the budget. Similarly, it might choose not to replace a certain number of retiring officials because it wanted a new car for the Secretary. It could do so, but only after approval by the Finance Ministry. Here, a supplementary grant would have to be approved, because the money approved for someone’s salary was being spent on a car.

The reappropriation ordered by the Supreme Court was to be approved as a supplementary grant. The issue is not just the money, but parliamentary approval. Once the money has been made available and spent, can Parliament disapprove? If it can’t, because there is a Supreme Court order, will such approval have any meaning? It has so disapproved, and the State Bank, breathing a sigh of relief, is out of it. It has made it clear that while it can sequester the funds, it can only transfer them if so instructed by the Finance Ministry.

The State Bank has complied with the Supreme Court’s order, but does not mean elections will be held. It merely means that that excuse has been disposed of, though Parliament’s rejection of the demand for grant stops that. The money can still be surrendered if not spent. It now remains to be seen how the Court ensures security. The briefing by the DGs of ISI and MI has not solved the problem. It may have complicated it, because of the unfortunate optics of meeting them in chamber rather than in open court.

The Supreme Court is not just attacking Parliament’s financial powers, it is also attacking its legislative power by making the Supreme Court (Procedures and Practices) Bill inoperative even before it receives, or is deemed to receive, presidential assent.

The division of powers is understood to mean that Parliament makes laws, and the Supreme Court and the High Court interpret them. Actually, the first interpretation is made by some faceless bureaucrat, and that iis taken to a competent court by an aggrieved citizen. A petitioner thus has to show that he is aggrieved, and not wasting the court’s time, by showing his locus standi. The right to a free judiciary being one shared by all citizens, the locus standi of the petitioners cannot be denied, but whether this extends to a bill which has not received assent, is another matter.

Admittedly, it has been noted that if the bill was to become law, then it would place restrictions on the Court. This shows an understanding that the restrictions on the Chief Justice are restrictions on the Court as a whole. This view has been agreed to by the CJP and seven of the judges of the Court, It is relevant that the eight-member bench constituted, included only one of the next three judges with legitimate expectancy of becoming chief justice. Whereas Mr Justice Faez Isa is the senior most puisne judge, and thus has legitimate expectancy of becoming Chief Justice, he will retire in October 2024, and Mr Justice Ejazul Ahsan will then become CJP. He will retire in August 2025, upon which Mr Justice Mansoor Ali Shah should succeed. Mr Justice Isa and Mr Justice Shah were not on the bench. If they were excluded as parties with an interest, then perhaps Chief Justice Bandial should not have been on the bench, nor anyone who might serve on the committee constituted by the Bill.

Paradoxically, this piece of legislation asks their lordships to be ‘judges in their own cause’, almost the way contempt petitions do. As the final interpreters, any grievances arising out of it would have to be settled by it. If some case sees all judges recusing themselves, is there a procedure whereby the Supreme Court can remand such a case to a high court? The fact that the question arises means it will be ground for appeal or review.

The Supreme Court should pause and realize that power belongs to the people. True, half the National Assembly is empty, but that is because members resigned voluntarily. What remains of the National Assembly must be considered the repository of sovereignty. After all, the judiciary only exists because its members are recruited by a process which involves a Judicial Commission involving Parliament.

It must also be remembered that the Supreme Court is a collection of men (and one woman) in late middle age. While they must expound the law and constitution, they must not pass orders with no hope of being obeyed.


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