In the first two weeks after he assumed office, Chief Justice of Pakistan Asif Saeed Khosa has shown no intention of continuing the high-pitched, high-profile, media-dependent ‘activism’ his predecessor, Justice Mian Saqib Nisar, became known for. The reasons could include his personal disposition and, equally importantly, a desire to distinguish himself from his predecessor. This suggests that, given the absence of headline-grabbing judicial activism, the Supreme Court will be markedly different over the next 11 months from what it was till recently.

In this, Justice Khosa is more like Justice Tassaduq Hussain Jillani who succeeded Justice Iftikhar Muhammad Chaudhry as the chief justice in December 2013. He is known for his explicit reluctance to pursue judicial populism with the same frequency and intensity as his predecessor, even though his June 2014 judgment on the protection of minority rights stands like a landmark in Pakistan’s judicial landscape.

Another common factor between Justice Jillani and Justice Khosa is the shortness of their tenure in the exalted office — less than one year in each case. In his brief stint, Justice Jillani could not inculcate a lasting culture of judicial restraint at the Supreme Court. Will the court experience a return to the ethos of Justice Nisar’s era after Justice Khosa is gone is a question that is weighing on many minds. If that ethos does return, then high frequency judicial activism has certainly assumed a cyclical character.

The cycle began when the Supreme Court under Justice Chaudhry – between 2005 and 2013 – became known for an unorthodox work pattern marked by an unprecedented use of Article 184(3) of the 1973 Constitution that empowers the apex court to enforce constitutionally guaranteed fundamental rights. This pattern defied most legal, judicial and constitutional interpretations of the said article and, thus, caused large-scale uncertainty and arbitrariness in adjudication in the apex court.

In an egregious invocation of the right to life, for instance, Justice Chaudhry took note of a memo allegedly delivered in May 2011 by Husain Haqqani, Islamabad’s ambassador in Washington DC at the time, to a former US military chief about the civil-military imbalance in Pakistan. To justify his action, Justice Chaudhry made national security an essential element of the people’s right to life.

In some other known instances, Justice Chaudhry went to the extent of fixing sugar prices and even staying the imposition of a Parliament-approved carbon tax. In what is perhaps the most significant exception that he made to judicial norms, he stopped just short of striking down those parts of the 18th Constitutional Amendment that sought to take away the absolute control over judicial appointments from the superior judiciary. The Supreme Court issued a short order in October 2010, requiring the legislature to make appropriate changes in the constitutional amendment so that control over judicial appointments remained with the superior judiciary. This was an unprecedented move — as was its aim: the court would not have to strike down the amendment, or parts thereof, if its suggestions made in the short order were approved by Parliament. It mattered little to the court that the Constitution does not give the Supreme Court the power for even a judicial review of constitutional amendments, leave alone the power to dictate changes in them.

Justice Nisar, as a judge of the Supreme Court, was a signatory to the orders passed by the Chaudhry Court in both the memo case and the one involving judicial appointments. As the Chief Justice of Pakistan, he went even further and gave new form and meaning to the judicial review of parliamentary proceedings as well as the enforcement of fundamental rights under Article 184(3).

It is widely recognised by jurists that Article 184(3) does not give the Supreme Court the power to carry out a judicial review of actions taken by individuals in their private and personal capacity. In constitutional democracies the world over, this power is confined to a scrutiny of the state’s actions — and that too only in order to protect constitutionally guaranteed fundamental rights. Justice Nisar disregarded this principle in at least two glaring instances: first in the actions he took against private hospitals for allegedly charging exorbitant fee from patients and, second, in the order he issued directing private schools to reduce their fee. Even though a case can be made to link the quality of a privately-provided service to its price (as is often done in consumer courts), both private hospitals and private schools in Pakistan are violating no laws of the land in charging the fee they charge. Significantly, consumer rights are not yet listed as a fundamental right in Pakistan’s Constitution and the Supreme Court, most certainly, is not a consumer court.

Justice Nisar also routinely issued directions to the federal and provincial governments while hearing cases under Article 184(3) on matters which, either by law or by the Constitution, fall outside the apex court’s purview. Just to cite one example, he practically ordered the imposition of a tax on groundwater extraction by companies selling bottled water. That the Constitution grants the power to levy a tax exclusively to the legislature – and not to any court – was not even argued and debated before him. Some other examples of a similar extension of judicial boundaries into the territories of other institutions include directions to the federal government to withdraw a tax on mobile phone use and the dissolution of the Punjab Healthcare Commission with the direction to form a new commission after having the names of its members approved by the court (read chief justice). In both cases, there are laid down rules and regulations that empower other institutions to impose a tax in the first instance and constitute a commission in the second.

As if all this was not enough, Justice Nisar also deemed it a legitimate exercise of judicial power to review the decision of posting a logo on the tail of Pakistan International Airline (PIA) planes and eventually order its removal.

A large part of Justice Nisar’s tenure as a member of the superior judiciary is said to have been marked by a textualist approach — seeing the role of the apex court strictly in terms of the text of the Constitution and the law. His opinion in the challenge to the 21st Constitutional Amendment is cited as an example to support this contention. All that changed in early 2018 — a year into his tenure as the chief justice.

In retrospect, his earlier views do not seem relevant to how his tenure as the chief adjudicator of the country eventually panned out. What is relevant here is that he got away with many judicial excesses despite the fact that disagreements with his rulings were fairly widespread among both jurists and outside observers. His ability to avoid an instant critique of his judgments is what should matter to us and worry us all.

It makes sense for Justice Khosa to choose to act differently from his predecessor as it did for Justice Chaudhry’s immediate successor. This may not necessarily mean that the long-term attitude of the apex court towards Article 184(3) will also change only because we have a new chief justice who has a different understanding of the superior judiciary’s role from the one held by his predecessor. Justice Khosa’s tenure may well turn out to be just a transitory phase, as has been the case with Justice Jillani’s.

What strengthens this probability are the views many apex court judges have already expressed. In a rather telling example, eight out of the 17 judges who heard a challenge to the 21st Constitutional Amendment (for the setting up of military courts) ruled that the Supreme Court, indeed, has the power to review constitutional amendments on the basis of what they called a basic structure or basic features of the Constitution. They also stated that it was the apex court’s jurisdiction to decide what was included in that basic structure and what was not. This meant that the Supreme Court could review, and annul, any future constitutional amendment that it deemed contrary to the putative basic structure. This was perhaps the most vigorous argument in the favour of a judicial review of constitutional changes — one that gave the superior judiciary a power to veto the will of the Parliament.

The court’s view suggests that in future too, some Supreme Court judges would like to extend the purview of the apex court as much as they can — and Article 184(3) could prove to be a handy tool if and when one or many of them decide to do so.

Before we move to discuss the limits and boundaries that Article 184(3) must have, it may help to reiterate the biggest reason for which Justice Nisar’s manner of exercising his constitutional powers is being questioned. It goes something like this: when courts frame policies, they weaken democratic process and perpetuate structural weaknesses in the government — that is, the executive branch of the state.

People elect a government to steer the state according to the promise and commitments made by politicians. It is also both the constitutional right and the responsibility of elected representatives to run the government. Judicial overreach in the form of activism or judicial populism diminishes the constitutional and legal space of the executive to function smoothly and effectively. It robs the executive of the opportunity, and thus the mandate, to implement its agenda. Not allowing the government to do so ensures that the political system and the administrative structure of the country remain immature and underdeveloped — or at least have a slow progress.

Seen in Pakistan’s context, judicial overreach weakens civilian governments vis-à-vis the military. An in-depth analysis of the Supreme Court’s working under both Justice Chaudhry and Justice Nisar will reveal that they never really challenged the military’s dominance in the polity. The latter, indeed, endorsed the idea of a civilian’s trial by a military court because of the “existential threat” faced by the country.

There, however, is another equally important but much less talked about dimension of judicial overreach that, in fact, impinges upon the judiciary’s own independence. In its latest manifestation, this was duly recorded in a note of dissent recently authored by Justice Mansoor Ali Shah. Somehow, it has not received the attention it deserves even when it includes a well-reasoned disagreement with a colleague, the Chief Justice of Pakistan in this particular case, on the exercise of judicial powers as provided by Article 184(3) and regulated by the Supreme Court’s rules framed under Article 191 of the Constitution.

The note is a continuation of a similar, earlier expression of disagreement by Justice Qazi Faez Isa — and also in the same case. Justice Isa penned the note in May 2018, when the three judges were hearing human rights complaints/cases referred to them by the Supreme Court’s Human Rights Cell (that was originally set up by Justice Chaudhry and that works directly under the supervision of the chief justice).

Justice Isa referred to the language of Article 184(3) and wondered whether the matters brought before the court by the cell fulfilled the criterion set by the article itself. He asked: did the matter put before the court have public importance and also require the enforcement of fundamental rights? Then he raised another question: who gets to decide whether the criterion has been fulfilled – the Supreme Court or the Chief Justice of Pakistan – given that the word used in the article is “court”?

Justice Isa was clearly adopting a textual approach to interpret and apply an important constitutional provision. Most jurists of yore would have instantly approved.

As soon as he expressed dissent, however, Justice Nisar dissolved the bench only to reconstitute it later. This, in the opinion of Justice Shah, could not have been done as the Supreme Court’s own rules do not give the chief justice the power to dissolve a bench after it has started hearing a case. This, as he pointed out, impinged on the “constitutional value of judicial independence” that, according to him, is fundamental to the rule of law. Here is how he explained it in a very straightforward way: “Any effort to muffle disagreement or to silence dissent or to dampen an alternative viewpoint of a member on the bench, would shake the foundations of a free and impartial justice system, thereby eroding the public confidence on which the entire edifice of judicature stands. Public confidence is the most precious asset that this branch of the State has. It is also one of the most precious assets of the nation.”

The two notes, as well as the civil-military equation in the country, necessitate – as does so much else that has transpired in the Supreme Court of Pakistan since 2006 – that an honest and detailed discussion is carried out on defining and setting the parametres for the exercise of judicial power under Article 184(3). The most important starting point for this discussion should be the contention that the apex court’s jurisdiction to enforce fundamental rights does not exist and operate in a vacuum. It carries certain preconditions within it.

The text of the article itself states that for any issue to attract the court’s jurisdiction, it must be of public importance and it must involve a violation of fundamental rights which are provided in the Constitution. The text makes absolutely no mention of the power of the Supreme Court, or that of the chief justice, to hear and decide cases on its own motion — a power often referred to as suo motu. Article 175 of the Constitution – which provides for the creation of the Supreme Court as well as the high courts – expressly states that no court shall have any jurisdiction except the one that is or could be conferred upon it by the Constitution or under any law. It may also be relevant to mention here that the Constitution confers suo motu power only on the Federal Shariat Court in Article 203D(1).

These textual preconditions become increasingly relevant when one explores the nature of the issues the Court, or rather the chief justices, has taken up suo motu in recent years. Leaving aside a handful of them, most are neither of public importance nor involve the infringement of fundamental rights. The markhor logo on PIA planes, for instance, could have been a bad corporate policy – perhaps even a wasteful one – but the matter certainly had little, if any, public importance and definitely did not violate anyone’s fundamental rights. It, therefore, did not deserve the court’s time and attention.

Yet, the Supreme Court under Justice Nisar was convinced that the Constitution allowed it to see the logo as a gross violation of fundamental rights of the people of Pakistan. It, thus, found it okay to spend scarce court resources on the case and also public money on the erasure of the logo.

The judges must keep in mind that even the apparent – though decidedly uneven and also transient – public support for judicial interventions in parliamentary and government domains does not make the doctrine of judicial activism constitutionally sustainable and acceptable. They should also realise that there is an inherent and intricate connection between the judiciary’s independence and how it interprets the Constitution and exercises its power to review government actions.

A judicial review may be legitimate only if it is guided by the constitutional scheme of separation of powers which regulates the relationship between different pillars of the state. If exercised injudiciously, a judicial review will only become the wielding of self-assumed powers by a hyperactive chief justice and/or some of his fellow judges. It will then be exercised sometimes at the expense of the views of other judges, often in violation of the Supreme Court’s internal rules and almost always in contravention of the Constitution itself. A judicial review lacking legitimacy, thus, ultimately impinges upon judicial independence as is illustrated by the opinions expressed by Justice Isa and Justice Shah.

Justice Nisar has certainly left the Supreme Court in a quandary which the incumbent chief justice and other judges will not find easy to deal with. The kind of unstructured, arbitrary and difficult to understand overreach of judicial power that he resorted to is probably the biggest threat that a civilian institution can pose to constitutional democracy in Pakistan.

In a paper written about a decade ago, Justice Khosa stated that the “jurisdiction conferred by law can in no circumstances be exceeded by a judge in the name of justice because such an approach completely negates the concept of rule of law”. He also stated that the judiciary will be completely independent only when it becomes free from internal threats. Such freedom will be the final frontier of judicial independence in Pakistan, he declared. 

“Apart from that concentration of powers in the hands of the head of a judicial institution regarding constitution of benches, allocation and distribution of cases amongst benches, attaching of priority to different kinds of cases and geographic transfer of judges is an issue which has raised eyebrows in the past and can also resurface in the future. A possible misuse of such powers by the head of a judicial institution can effectively render the independence of an individual judge to be of no practical utility or benefit to the citizens at large,” he wrote.

How Justice Khosa ensures that the judiciary’s independence is protected from the excesses he has mentioned in his essay will be the biggest test of the effectiveness of his term as the chief justice of the Supreme Court.

The writer is a lawyer at the Lahore High Court and a human rights activist with a special interest in criminal and constitutional law and religious freedoms.

This article was originally published in the Herald's February 2019 issue under the headline 'Breach of justice'. To read more subscribe to the Herald in print.