A welcome decision

Actions and orders of a particular era devastated the functioning of the executive government

The recent judgement of the Supreme Court in refusing to entertain petitions filed before it pertaining to alleged irregularities and veracity of the last general elections is indeed a welcome decision; a return to judicial sanity after the halcyon, heady days of judicial super-indulgence. This landmark ruling, wherein the Supreme Court bench properly ordered all petitioners to file their election complaints before designated election tribunals as was mandated by Article 225 of the Pakistan Constitution, in one stroke, strengthened national institutions, enhanced political stability and duly respected the Constitutional principle of separation of powers.

We all know how the rampant, free-for-all petition-baazi fostered by an ambitious, power-hungry Chaudhry Iftikhar Hussain degraded our Supreme Court into a patwari court where anyone with any beef, real or imagined, or on any whim was pampered to straight away petition the highest court of the land. The Supreme Court, being the highest, the ultimate arbiter of the land, is swamped by all the parties to a dispute. All the litigants want to go to the apex court when all recourses have failed.

Consequently, because of such mounting pressure of heavy caseloads on its docket on the one hand, and the corresponding constraints of time and resources on the other (there are only a fixed number of Supreme Court judges), access to the Supreme Court out of pragmatic necessity have to be filtered and restricted to the most important cases.

As far as the Supreme Court’s basic or original jurisdiction of the first instance is concerned, it’s restricted to only those cases where there’s a dispute involving the federal government and any one or more of the provincial governments [Article 184(1)]

In order to facilitate this screening process various constitutional and legal tools are employed, the important ones of them are recounted as follows. Let’s start with limitations placed on the jurisdiction of the apex court by our Constitution.

As far as the Supreme Court’s basic or original jurisdiction of the first instance is concerned, it’s restricted to only those cases where there’s a dispute involving the federal government and any one or more of the provincial governments [Article 184(1)]. Embedded in the Constitution is the cardinal legal principle of separation of powers of the three branches of government, the executive, legislature and the judiciary to prevent one branch from encroaching upon the powers of the other branches.

Furthermore, the Constitutes bestows autonomy and sanctity to certain key bodies and officials such as the election commission, the auditor general, national accountability board, the speaker of NA. Such constitutional protection takes them beyond the pale of judicial oversight. Of course, then there’s also the unique, anachronistic and inconsistent original jurisdiction, the suo motu jurisdiction, indulgently bestowed to the apex court by Article 184 (3) of the Constitution, enabling the court to solicit those cases on its own accord if in the court’s discretion they pertained to questions of public importance regarding enforcement of fundamental rights.

Besides the above constitution-based limitations imposed on the apex court, there’s a whole body of established principles of law that disciplines the functioning of the Supreme Court succinctly stated here. Prominent among these legal and judicial principles that proscribe the Supreme Court from admission of cases or petitions for hearing include the threshold prerequisite of loci standing which requires that a plaintiff first must prove an actual, direct injury to him or herself and not an indirect, or general in nature.

The Constitutes bestows autonomy and sanctity to certain key bodies and officials such as the election commission, the auditor general, national accountability board, the speaker of NA

Also, in order for the petitions or appeals brought before the Supreme Court to be admissible for adjudication, the underlying dispute or controversy must be real, actual rather than a futuristic or hypothetical one; it must not involve matters of politics or a political question; it must be ripe; it must be justiciable and it must not be based on the interpretation of a law that is dead or obsolete, etc,.

Unfortunately, during the reign of ex- Chief Justice, Chaudhry Iftikhar, the Court’s deliberations and pronouncements trashed to pieces every one of the above constitutional provisions and the canons of law. This was painfully illustrated in the SC’s handling of such cases as the Memo case (lack of petitioner standing, political question) , the disqualification of Prime Minister Gilani case (usurpation of powers of the legislature), the NRO case (obsolete law, violation of constitutional immunity), the Steel Mill privatisation, appointments of government officials cases (interference in the exclusive powers of the executive branch), the RekoDiq/TCC and Rental Power/Karkey cases (breach of international arbitration and treaty laws), and the various headline-making suo motu cases like Samosas and sugar pricing cases (misuse of suo motu jurisdiction), etc.

Indeed these actions and orders of that era devastated the effective functioning of the executive government, demolished the wall of separation of powers, fostered political instability, resulted in billions in losses to the nation, shattered national economy via enhanced political risk and shying away of foreign investment, and ironically, dented the rule of law and the administration of justice.

In the upshot, it behooves our superior judiciary to diligently respect and abide by the provisions of the Constitution and the principles of law, no matter how strong populist pressures are or how tempting or craven judicial intervention might seem to be. If not, then not only the rule of law would be in serious danger of being compromised but it would concomitantly trigger debilitating damages to the nation’s stability and economy.