IN May 2012, the UN Special Rapporteur on the Independence of Judges and Lawyers Gabriela Knaul made an official visit to Pakistan to assess, among other things, the independence and accountability of the judiciary.
In her report to the UN Human Rights Council, she expressed concern that the “role of the Supreme Court seem[ed] to have become very politically sensitive”, and that the lack of clearly defined criteria to guide the Supreme Court in its decision to take up cases suo motu had resulted in uncertainty and was “difficult to reconcile with the rule of law”.
Six years later, these concerns continue to adversely impact public perception of the court’s independence, impartiality and integrity.
Article 184(3) of the Constitution sets out the Supreme Court’s original jurisdiction, and enables it to assume jurisdiction in matters involving a question of “public importance” with reference to the “enforcement of any of the fundamental rights” of Pakistan’s citizens.
Article 184(3) is a powerful mechanism to be used judiciously.
Particularly since the 1980s, the court has taken the position that under Article 184(3) it may be moved by any party, regardless of whether the petitioner is personally aggrieved by alleged violation of the law in question. The Supreme Court has also exercised its original jurisdiction suo motu, in the absence of a petition by any interested party.
Article 184(3) has allowed the court to pass many progressive judgements clarifying the scope of fundamental rights, eg in 1994, it held that the right to life guaranteed by Article 9 included the right to a healthy environment.
As the use of 184(3) was evolving, however, the Supreme Court repeatedly cautioned against its excessive use, warning that easy access to the highest court should not be used to bypass or undermine lower courts. It further said that in exercising these powers, courts must not act as a “social reformer” and should develop “a balanced, considered and indiscriminate policy” governing the exercise of its original jurisdiction.
Beginning with former chief justice Iftikhar Chaudhry’s restoration in 2009, and now under Chief Justice Saqib Nisar, the court has moved away from earlier precedents, significantly expanding the use of its original jurisdiction. But, it has done so without clear guidelines on how it decides to take up and prioritise cases using Article 184(3).
Controversially, in a number of cases, the court’s exercise of its original jurisdiction, and orders passed pursuant to it, appear inconsistent with protection of human rights, and seem to be based more on political calculations rather than a bona fide and appropriate (even if expansive) legal interpretation of ‘public importance’ or clarification of ‘fundamental rights’.
Take the recent ‘disqualification’ judgements. Article 62(1)(f) provides that no person shall be elected as member of parliament unless they are “sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law”.
The Supreme Court interpreted its 184(3) jurisdiction to include the authority to make “declarations” about the “honesty” of an MP under Article 62(1)(f), barring them from contesting elections for a lifetime.
It is important to note that in all these cases, the court made a declaration of ‘dishonesty’ against MPs without a trial and in the absence of conviction for any offence. Since these declarations were made in its original jurisdiction, the aggrieved parties were also denied any possibility to appeal the findings against them.
In another case, the court held it could determine whether an incident reported in the media was ‘terrorism’ in its original jurisdiction and bar lower courts from deciding otherwise during trial or in appeal, even if after hearing all parties they conclude that the facts of the case did not meet the legal threshold of an offence of terrorism.
Cases such as these reiterate the concerns raised in a 2013 assessment by the International Commission of Jurists that an arbitrary use of the 184(3) powers has consequences that in the long run could undermine democracy and rule of law. Some of the issues highlighted included infringing upon an accused’s right to a fair trial; denying affected parties the right to an appeal; and the potential for trespassing into constitutional powers and roles of other institutions and branches of state.
Article 184(3) is an important and powerful mechanism that if used judiciously and in a manner that respects the separation of powers, can be used to combat impunity, enhance protection of human rights, and advance respect for the rule of law.
However, as Justice Faez Isa noted recently, “before exercising its original jurisdiction the Supreme Court must satisfy itself that the jurisdiction it is assuming accords with the Constitution” — something that appears to be lacking in some of its recent activism.
The writer is a legal adviser for the International Commission of Jurists.
Published in Dawn, May 27th, 2018