Rifts within Pakistan’s Supreme Court over the appropriate application of its suo motu powers
The spat between Justice Faez Isa of the Supreme Court and Chief Justice Saqib Nisar has shined a spotlight on the latter’s preoccupation with “justice for deprived, destitute and vulnerable segments of society as enshrined in Article 184(3) of Constitution of Islamic Republic of Pakistan 1973.” The Chief Justice has leaned on this article to unleash “public interest litigation” through his suo motu jurisdiction. He has established human rights cells in Karachi and Lahore that pump details of malfunctioning departments to arm him with “facts” before he “visits” them and threatens them with punishment.
The spat in question occurred after Justice Isa, as part of a three-member bench, questioned the validity of a case being heard under Article 184(3). The CJP immediately rose and disbanded the bench, re-forming it as a two-member bench after ousting Justice Isa without informing him of it. But Justice Isa is not the only judge to demur against the CJP’s activism. Another Supreme Court judge, Justice Dost Muhammad Khan, retired refusing to accept a formal “reception” from the CJP. He kept his trap shut but in a speech in Peshawar after retirement he made his plaint quite clear: the CJP was crossing the line like his discredited predecessor Iftikhar Chaudhry, whose activism had only harmed the judiciary.
Judges in Pakistan go populist because of the “third world” conditions of governance in the country. Indian judges too went through this “messianic” phase some years ago till the grotesqueness of their enterprise made them regret and give up. In Pakistan, the bars have protested against the CJP’s excessively talkative activism; but politically he is on safe ground. All the big political parties see his suo motu assault as the gimmick that will discredit the ruling PMLN and see it beaten before the military establishment, ultimately leading to its defeat in the July elections. However, he will leave by the end of 2018 without improving his own bedraggled lower judiciary where the common man continues to get a raw deal and cases have been pending for decades.