Judicial crisis – 08 Apr 2023

Pakistan’s judicial crisis has taken another interesting turn after Justice Athar Minallah’s detailed note yesterday, in which he stated that the suo-motu case on Punjab and Khyber Pakhtunkhwa elections was dismissed by 4:3 and clarified that “he had not recused nor had any reason to dissociate himself” from the case. Justice Minallah’s note comes in the midst of the ongoing debate regarding the powers of the chief justice, which Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail also pointed out in a 27-page detailed ruling last month. In recent weeks, the use of suo-motu powers and the power to form benches has come under criticism from within the judiciary – the argument being that these are not an individual’s powers but powers vested in the institution of the judiciary. Under these circumstances, it seems that the government’s decision to pass the Supreme Court (Practice and Procedure) Bill, 2023 was not without merit. For many years now, lawyers, bar councils and even judges have noted that the suo-motu powers and bench-formation powers of the chief justice have to be regulated so that the independence and impartiality of the judiciary does not come under question.

All of this is obviously not helping strengthen the prestige of the judiciary. It is not without reason that Justice Minallah has written that the court must show extreme restraint in matters which involve political stakeholders, highlighting the political toxicity that has led to political parties not even being willing to sit together for dialogue, let alone reach a consensus. Pointing at the PTI’s political strategies, the note mentions the dissolution of the provincial assemblies as part of the PTI’s political strategy and says that this “court cannot and must not appear or be seen as advancing the political strategies of political stakeholders”. Many legal experts have argued how constitutional and political cases should have been heard by the full court so that such controversies could have been avoided from the first day.

The other side of the debate argues that Justice Minallah’s note stands of little value since he was among the nine judges that had signed the Feb 27 order that authorized reconstitution of the bench. These are all questions now for the judiciary itself – that too, the highest judiciary in the land. At the end of the day, though, none of this will matter much without the supreme judiciary stepping out of what has now become a disturbingly polarized situation. As Justice Minallah too has noted, the SC cannot appear to be politically partisan. Surely some effort can be made to ensure the people that justice continues to remain non-partisan? For that, the internal differences need to be resolved, and the current political chaos kept away from the business of justice. Introspection and a way out of the now very out-in-the-open judicial split need to be sought by the honourable judges. A judiciary this starkly at odds from within does not inspire much hope in its judgment. Among all the crises we are faced with, this one can deal some dangerous precedents.

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