By Ahmed Bilal Mehboob
Judiciary-executive relations have been traditionally uneasy
in Pakistan. To an extent, this relationship is considered desirable in a
democracy because it is in line with the scheme of checks and balances.
However, when the desirable tension among the organs of the state –
executive, judiciary and legislature – turns into a turf war, it becomes
a problem. Realizing that the relationship in Pakistan is in need of review and,
probably, repair too, the former Chief Justice of Pakistan (CJP), Asif Saeed
Khosa underlined the importance just a day before he took over as CJP in
January last year. He said:
“Let us discuss the alleged encroachment of the
executive domain by the judiciary through interference in matters of policy,
the alleged excessive use of its constitutional jurisdiction in matters which
are administrative in nature and how best the judiciary can return to its
normal but effective adjudicatory role.”
There was a fresh reminder of the possible
‘alleged encroachment of the executive domain by the judiciary’ recently when
the Supreme Court passed an order to open shopping malls which were closed down
by the government as a coronavirus lockdown measure. The Supreme Court also
declared the weekly two-day closure of businesses illegal and also took
exception to ‘huge’ spending by National Disaster Management Authority (NDMA)
on coronavirus-related equipment and protective gear. The judgment was
particularly embarrassing for the Sindh provincial government which, with the
largest number of confirmed cases among the provinces and territories of
Pakistan, had been forcefully advocating a stricter lockdown.
How far should the judiciary give directions in
administrative matters or pass orders in the realm of governance? The question
has perplexed the legal fraternity as well as experts and practitioners of
governance around the globe and there is hardly any agreement over where to
draw the line.
If a government is not taking decisive and timely action and
as a result the basic rights of people are getting affected, the judiciary
usually considers it their duty to fill the gap and give directions.
The Pakistani constitution authorizes the
Supreme Court under Article 184 (3), commonly known as ‘suo moto’ powers, to
make an order if it considers that a question of public importance regarding
the enforcement of any of the fundamental rights is involved. The Supreme Court
of Pakistan recently invoked the same powers while reviewing government
performance in combating COVID-19.
The reluctance of the parliament in actively
exercising its powers of oversight of the executive might have also prompted
the Court to take suo moto notice in this case.
Parliamentary leadership was taking time to agree
on the dates when the two houses of parliament could meet and whether the
sittings would be virtual, in-person or hybrid. The parliamentary committee
especially constituted by the Speaker for the oversight of government
performance on COVID-19 could not proceed apace because the Speaker himself
fell victim to coronavirus and had to confine himself to his residence.
Finally, when the two houses met briefly, the members of the ruling party and
the opposition preferred to score political points rather than debate the
strategy to combat the virus. If the legislature does not like suo moto
notices, it needs to improve its performance, it seems.
The Pakistan Bar Council, Supreme Court Bar
Association and legal experts in general have historically opposed the arbitrary
recourse to Article 184 (3) by the Supreme Court.
Also, there is a legacy of ‘expensive’ judgments
made by the Supreme Court in the past especially while dealing with technical
subjects. For example, Pakistan faces a penalty of $6 billion imposed by the
International Centre for Settlement of Investment Disputes (ICSID) in 2019
partly because the Supreme Court had struck down the Reko Diq mining contract
signed between the government of Balochistan and an international company, TCC.
Another example is that of the Turkish Karkey Power Company which successfully
won an ICSID award of US $860 million against the government of Pakistan in
2017 because the Supreme Court had ordered the termination of the contract with
Karkey.
These kind of Supreme Court orders on governance
issues have been branded as judicial over-reach by some eminent lawyers and
lawyers’ organizations. They maintain that the Constitution of Pakistan
stipulates separation of powers among the three organs of the state and
governance-related decision making is the privilege of the executive which
should not be interfered with unless there is a clear breach of law.
Reverting back to the analysis by the former CJP
Khosa, should his idea of holding an inter-institutional dialogue at the summit
level be seriously considered in order to avoid ‘encroachment’ of one organ
into the turf of the other?
(Ahmed Bilal Mehboob is the president of
Pakistan-based think tank, PILDAT; Tweets at @ABMPildat)
