In March, the Pakistan Parliament passed a bill to regulate the exclusive discretion of the Chief Justice (CJ) of the Supreme Court in initiating cases under suo motu jurisdiction and in making the Benches of Judges that hear cases. The bill also provides an intra-Court appellate review by a larger Bench. Before the bill could become law, the Court swiftly declared the bill unconstitutional as an infringement on the judiciary’s independence. The Court issued an anticipatory injunction so the proposed law would not be “acted upon in any manner.” An overwhelming majority of lawyers disagree with the Court’s ruling to retain.
The Parliament, a bicameral legislature, is fighting a CJ who exercises unregulated discretion to pluck highly controversial political cases from thin air for adjudication. Then, the CJ deploys the bench-making authority under the 1980 Court Rules to fashion benches of like-minded Judges and excludes incompatible colleagues from participating in these political cases to achieve desired outcomes.
More specifically, CJ Umar Ata Bandial, Justice Munib Akhtar, and Justice Ijaz ul Ahsan benefit from the CJ’s unregulated discretion. This Bench of Three decides an overwhelming majority of news-grabbing political matters since Pakistan does not have a political question doctrine that would stop judges from venturing into politics. These three Judges also appear in a five-Judge Bench to ensure desired outcomes. Thus, the current Supreme Court of 15 Judges has been practically reduced to the Bench of Three deciding contentious political cases. In contrast, other Judges clear the backlog of more than 5,000 cases before the Court, some appeals and reviews lying dormant for decades. The Court has no first come-first-serve rule for the disposition of cases. For the fifth consecutive year, Pakistan stands 129 out of 140 on the Rule of Law Index.
Unlike in the United States, the Supreme Court Judges in Pakistan do not go through a vetting process by the people’s elected representatives, an unprecedented judicial independence that the Court has extorted through a constitutional amendment. Consequently, Parliament has no constitutional or statutory power to appoint or remove Judges. A Judicial Commission primarily comprised of Judges and headed by the CJ is empowered to select Judges for vacant slots on the Court or remove them for judicial misconduct. The Pakistan President has no choice but to appoint the most senior Judge as the CJ. The Judges do not face an impeachment threat as the Parliament lacks impeachment authority.
One statutory provision that dents the monopoly of Judges over the Court composition is mandatory retirement at 65. The Parliament has refused to extend the retirement age despite the Court’s pressure. Probably the Court desires to declare the compulsory retirement statute unconstitutional. However, Article 26 of the Constitution, furnishing the non-discrimination provision, does not include age as a protected category.
Heart of the Conflict
The conflict centers around the CJ’s unregulated discretion to pick political cases without a petitioner under suo motu jurisdiction and cherry-pick Judges to resolve them. The legal system carries two distinct sources of the CJ’s unregulated discretion. The first part of unregulated discretion radiates from the Court’s original jurisdiction under Article 184(3) of the Constitution, which the CJ monopolizes via invocation, while the second part of discretion stems from the CJ’s Bench-making authority under the 1980 Court Rules—the combination grants the CJ a formidable control over the origination and outcomes of suo motu cases.
Several Judges on the Court, including the next CJ, Bar Councils representing thousands of lawyers, and the Parliament of elected representatives propose regulating the CJ’s exclusive discretion to establish fairness in initiating and allocating suo motu cases. The regulation would also control the damage the CJ’s choices inflict on the Court’s credibility and impartiality by skewing the political system with preplanned outcomes in controversial cases.
Suo Motu Jurisdiction
In addition to appellate and advisory jurisdiction, under Article 184(3) of the Constitution, the Supreme Court has original jurisdiction, to the exclusion of every other court, to “consider a question of public importance with reference to the enforcement of any of the Fundamental Rights” enumerated in the Constitution. The original jurisdiction is a superb constitutional provision that empowers the Supreme Court to protect the fundamental rights of “the vulnerable, marginalized, and depressed classes of the society.” The Court can provide a remedy when governments or state institutions violate these rights, and the aggrieved parties lack the will or resources to take on the government or state institutions. Under relaxed rules of legal standing, anyone can petition the Court under the original jurisdiction, though the Court is not bound to hear it. The Court turns down a majority of 184(3) petitions.
The enforcement of the original jurisdiction has undergone a Kafka-esque metamorphosis. The Court may exercise original jurisdiction without a petition, hypothesizing an aggrieved party, in the name of suo motu jurisdiction. First invented in a 1990 case, suo motu jurisdiction is akin to judicial notice but empowered with initiating new cases without a petitioner. In a 2021 case, the Court formally placed the invocation of suo motu jurisdiction under the CJ’s exclusive control.
Thus, the original jurisdiction, which the Constitution vests in the whole Court to protect the fundamental rights of powerless citizens, has mutated into the CJ’s sole discretion to venture into politically electrifying cases to skew the balance of law for or against contested political stances. According to Justice Athar Minullah, a new Judge on the Court, suo motu jurisdiction in political cases has eroded public trust and turned Judges into politicians in robes.
No Judge appears to embrace the political question doctrine practiced in the U.S., perhaps for good reasons. Given the stormy political combats for power, suo motu jurisdiction could calm the waters. However, suo moto jurisdiction works best when the entire Court is on board for its invocation. A prudent CJ would consult colleagues of diverse viewpoints before exercising suo motu jurisdiction. Judges may also request suo motu jurisdiction, as twelve Judges did in April 2022, when the Deputy Speaker of the National Assembly arbitrarily vetoed the no-confidence motion against Prime Minister Imran Khan, accusing elected Parliamentarians of being traitors. By contrast, suo motu jurisdiction breeds chaos, aggravates the political milieu, and tarnishes the Court’s reputation when the CJ consults only a few like-minded Judges and (blatantly) ignores other Judges.
Even more problematic than the nonconsensual invocation of suo motu jurisdiction is the CJ’s unregulated discretion in selecting Judges for controversial cases, which unhappy politicians call Bench-fixing.
Bench-Fixing
The CJ’s discretion to make judicial Benches to hear cases comes from an administrative rule made by the Supreme Court in 1980 under CJ Sheikh Anwarul Haq. CJ Haq was a beleaguered Judge who upheld the military coup General Zia ul Haq perpetrated in 1977 after overthrowing a democratically elected government. CJ Haq also presided over the Court that hanged Prime Minister Zulfiqar Ali Bhutto in a controversial murder trial. Ironically, the Supreme Court made the 1980 Court rules under Article 191 of the Constitution that General Haq had subverted.
Order XI of the 1980 Court Rules states: “Save as otherwise provided by law or by these Rules, every cause, appeal or matter shall be heard and disposed of by a Bench consisting of not less than three Judges to be nominated by the Chief Justice.” The Judges who approved the rule did not foresee the potential abuse of discretion that the CJ could do to decide controversial political questions by a minimal Bench of three Judges.
The Bench-making rule assures administrative convenience and is benign if the CJ is committed to developing jurisprudence that reflects the Court’s diverse viewpoints without preplanning the case outcome. Bench-making discretion leads to Bench-fixing if the CJ selects Judges to generate desired results in political cases, a point I explained in a prior JURIST commentary. The Parliament’s bill that furnishes an Intra-Court appeal before a larger Bench aims at countering the abuse of discretion in Bench-fixing. The Court must not dismiss the Bench-fixing accusation but provide a credible solution. An independent judiciary does not mean a stubborn judiciary that declines to avoid impropriety or the appearance of impropriety.
Conclusion
CJ Bandial is a qualified Judge with an excellent resume and demonstrates a superb knowledge of the Constitution and constitutional theory, and perhaps means well in exercising suo motu jurisdiction and making judicial Benches. However, good intentions are not good enough to lead the Supreme Court, which needs public trust as much as compliance with the Constitution and laws. CJ Bandial retires in September, but the disputed discretion resides in the office of the CJ rather than the person. The next CJ, Qazi Faez Isa, has been outspoken about regulating the CJ’s discretion in suo motu cases. He could perhaps persuade colleagues to modify the 1980 Court Rules to design an equitable case allocation system that respects all Judges and all viewpoints.
Ideally, the CJ should consult colleagues and decline to assume suo motu jurisdiction, particularly in politically charged stances when Judges are bitterly divided about invoking suo motu jurisdiction. Nonetheless, a diverse and intellectually rich jurisprudence obtained through rigorous and competitive legal reasoning is much more valuable than managing case outcomes. Controversial cases, including dissenting opinions, instruct generations of lawyers, law professors, and judges in thinking about legal issues and cultivating credible solutions to legal problems.
A Side Note
The Supreme Court courtroom turns into a nicely controlled theater when the CJ exercises suo motu jurisdiction in a talk-of-the-town political case: the representatives of political parties, bar councils, senior advocates, government officials, and media anchors pack the courtroom; some are invited to the rostrum a la “expert witnesses” to share their views on the issues. The evening news and several dozen talk shows on scores of TV outlets cover the courtroom drama, flashing the pictures of Judges in robes and reporting the exchange of jibes between Judges and lawyers and other entertainment snippets. By default, the TV viewers learn about Benches and the law as media hosts, even if they have no legal training, toss around Constitutional provisions, and engage in robust debate with lawyers and politicians invited to comment on suo motu issues, everyone joyously disregarding that the case is sub judice.
Ali Khan is the founder of Legal Scholar Academy and an Emeritus Professor of Law at the Washburn University School of Law in Topeka, Kansas. He has written numerous scholarly articles and commentaries on international law. In addition, he has regularly contributed to JURIST since 2001. He welcomes comments at legal.scholar.academy@gmail.com
Suggested citation: L. Ali Khan, Pakistan’s Chief Justice Defies the Parliament to Retain Unregulated Discretion, JURIST – Academic Commentary, April 18, 2023, https://www.jurist.org/commentary/2023/04/Pakistan-Chief-Justice-discretion.
This article was prepared for publication by JURIST. Please direct any questions or comments to commentary@jurist.org
