The Supreme Court case

The live telecast of the proceedings of the Supreme Court Full Court on the Supreme Court (procedure and Practice) Act have been unprecedented, not just because it has removed the cloak of the esoteric from them, but because it has allowed everyone an insight into the minds of the judges. Though the Full Court has not yet proceeded to judgement, that stage is not far off, and the tenor of remarks from the Bench, as well as the questions asked by the learned judges, indicates that the Chief Justice of Pakistan, Mr Justice Qazi Faez Isa, wants the surrender of the CJP’s powers to a committee of judges, as envisaged by the Act, and is also very cautious about stepping into the domain of the Legislative Branch. Other judges seem inclined to protect the Chief Justice’s powers against Parliament. However, whatever the result of the case, it has been useful in highlighting an important question: who shall have the power of constituting benches in suo motu cases.

That issue has been highlighted by the case, and even if the Supreme Court was to strike down the Act because it found Parliament not competent to make the law, it is difficult to see the Supreme Court not reforming the rules and moving away from single-person discretion towards greater collegiality. For the first time, under the Act, a committee of senior judges has been delegated a function of the Supreme Court, that of deciding which suo motu cases to take up. So far, that function of the Supreme Court has been exercised by the Chief Justice of Pakistan.

There seems a progressive realization of the implications of various positions. The principle is that of the independence of the judiciary. That had been understood to be freedom from interference from the Executive. It can be argued that that fight is not yet over, but it has to be admitted that there has been enough progress for attention to be paid to the need for what might be described as intra-judiciary independence; to make sure that independence is not compromised by the whims of any individual figure within the judicial establishment. Perhaps then the spotlight will shift to mob justice, where hordes of lawyers try to influence judges, particularly of the subordinate judiciary, in their favour.