Clipped wings

Published March 30, 2023

THE incumbent government’s move to unilaterally relieve the chief justice’s office of two important discretionary powers cannot be condoned. To be clear, there is nothing repugnant in the changes being sought.

In fact, it has been a long-held opinion in the legal community that the chief justice’s suo motu powers ought to be regulated to prevent wanton invocation, and that benches formed to hear important cases should be more inclusive to reflect the diversity of thought within the Supreme Court.

However, the manner in which these changes are being introduced — rather, enforced on the superior judiciary — is problematic and likely to have long-lasting repercussions for the trichotomy of powers envisaged under the Constitution.

The most the government ought to have done at this point was forcefully request the superior judiciary to urgently convene a forum where they could settle the matter amongst themselves.

There is also the question of optics. It should be noted that the ‘amendments’ bill was slipped into an ongoing session of the National Assembly through a supplementary agenda after its unusually prompt approval by the federal cabinet. The government then seemed to be in a hurry to have it approved by all relevant quarters so that it could be enacted into law post-haste.

The urgency with which the legislation was moved would suggest the government was never really interested in any considered debate and deliberation on it.

There was also the question of timing: it was strange that the government sprang into action with a legislative proposal so quickly after the surfacing of the dissenting opinion of two honourable judges of the Supreme Court in which they objected to a suo motu notice taken by the chief justice.

Therefore, the question, ‘Does the government have a motive that goes beyond simply reforming the practices and procedures of the court’, is inescapable.

Whether or not the government’s legislative intervention is legally sound is a matter best left to the country’s legal minds. However, it appears this bill will more likely complicate the Supreme Court’s problems rather than solve them.

If the divisions within the top court remain unbridged, the functioning of the three-member ‘committee’ proposed under the bill will be anything but smooth. And if the Supreme Court is unable to prevent itself from repeatedly getting caught in an internal tug-of-war, other branches of the state will quickly find they are freer to commit excesses.

This is why the matter ought to have been left to senior judges to decide with their collective wisdom. However, the chief justice also needs to act. With pressures growing on his institution, he must restore its unity and credibility. One proposal is to have the full court hear the election delay case. He should reconsider it seriously.

Published in Dawn, March 30th, 2023

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