Prime Minister Imran Khan and President Arif Alvi at Chief Justice Khosa’s oath-taking ceremony | Photo courtesy @pid_gov
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.