Five urgent steps for SC

From judicial activism to judicial overreach

Some credit may be due to our Supreme Court (SC) for finally getting it right in disposing off Tahirul Qadri’s petition challenging the composition of Election Commission of Pakistan (ECP), after a spate of highly questionable orders, decisions, verdicts such as in the NRO, Memo, Gilani cases etc. The Court correctly ruled, though after three days of political grandstanding, that the petitioner lacked legal standing to file his petition before the Supreme Court and thus his petition was not admissible for hearing.

Since, among other things, time and resources of the highest court of the land, are both limited and valuable, anyone who submits a petition to the SC must meet a certain criteria before his or her petition can be admitted by the court. That criteria, or what is called locus standi, or legal standing, requires that the petitioner must have suffered in fact a direct and personal not general, an actual not speculative or prospective or hypothetical, a concrete not abstract or hypothetical, injury or harm at or before the time of filing his/her petition.

It was plain that Maulana Qadri failed to meet the criteria on all counts: the ECP did not violate any of his fundamental rights, nor any actual harm or injury was caused to him before the filing of his petition.

Some may view this proper and wise decision on Qadri’s petition as a harbinger of SC’s changing attitude brought on by the sobering effect of its rebuff by the Swiss authorities in the NRO case. If so, such a change will be a welcome course correction of the direction of the judicial pendulum that had begun to swing dangerously towards the extremities of judicial overreach.

Firstly, the judiciary, on the road to judicial redemption, must rectify and reverse some of its most glaring and dubious decisions or orders to instill trust and legal soundness in its deliberations. For starters, in view of the vindication of ex-PM Gilani’s constitutional posture by the Swiss rejection of the letter it behooves on the judiciary, in all fairness and justice, to reverse and set aside his improper disqualification from the Parliament.

In a similar vein, the petitions filed by Nawaz Sharif and others in the Memo case should now be deemed inadmissible and dismissed since just like petitioner Qadri, they too lacked legal standing to file petition against ex-Ambassador Husain Haqqani as no actual injury or harm in any manner was inflicted on them by the alleged Memo to a US general.

During the hearing of Qadri’s petition the honourable judges made much issue of Qadri’s foreign citizenship, ruling that he was not a genuine ‘stakeholder’ in the Pakistan’s milieu. But what about the foreign nationality of Ejaz Manzur, whose testimony was the very basis of the Memo case? Is he more of a stakeholder in Pakistani politics than Maulana Qadri? At least the latter was also a Pakistani citizen.

Secondly, the judiciary in its own interest and in the interest of strengthening our other institutions, like police, investigative agencies etc, should display selectivity in entertaining suo motu petitions. It should admit only those petitions concerning egregious cases where human life is involved or where lower courts cannot be approached for relief on a constitutional matter.

The suo motu actions by the court in such mundane issues as price fixing of samosas, sugars, CNG etc, bureaucratic transfers etc, have degraded the exalted status of the SC to the level of an ombudsman or an investigative agency. For another, it has the effect, unintended or otherwise, of intervening in the proper functions of the executive and legislative branches, thus subverting the constitutional wall of separation of powers.

Thus the burden is also on the Parliament to redraft and streamline its language and severely restricted in its cope and application. Why give an errant, ambitious judiciary the temptation to exploit this seemingly endless power under the pretext of matters of “public importance” (almost everything can be construed as of public or national importance) or “enforcement of fundamental rights”.

Thirdly, the SC should faithfully abide by the established principles of law and constitution, both in letter and spirit. Disrespecting fundamental rules of law does not constitute “independence of judiciary”. It’s called judicial incompetence. It makes the judges not bigger but puny in the eyes of law.

Fourthly, the judiciary must stop playing the role of political leaders, giving political speeches and issuing statements on matters that are part of the political, executive or legislative domains, such as governance, elections, future legislation and amendments, etc.

With all due respect, apex judges are not elected leaders of the country. They are appointed by the bureaucracy and are accountable to no one. If they simply focus on their job, performing their constitutional duty of interpretation of law and speedy resolution of real disputes between parties, they will do just fine.

Finally and fifthly, the honourable SC should utilise its contempt powers very sparingly so as not to run afoul of the basic and weightier constitutional right of free speech of the people. Exercise of this power should be limited to situations where possible “contempt” is committed by the litigant parties themselves only within the court premises.

Yes, the judiciary should “pity this nation”— this poor, caged and bedevilled nation which doles out enough largess from its meager resources for judges subsisting on its food chain to lead an elitist, luxurious lifestyle.

Even without indulging in judicial fantasies, there’s enough work for the honourable judges to throw a lifeline and may be some hope to victims trapped in a convoluted, corrupt, cavernous, contrived system of justice. For starters, Mr Chief Justice, what about clearing some of the logjam of thousands upon thousands of pending cases in the SC’s and other courts’ dockets?

Dr Kamal is a corporate attorney and an author.