Questions of judicial overreach and governance in Pakistan
Judiciary-executive relations have been traditionally uneasy in Pakistan. To an extent, this relationship is considered desirable in a democracy because it is in line with the scheme of checks and balances. However, when the desirable tension among the organs of the state - executive, judiciary and legislature - turns into a turf war, it becomes a problem. Realizing that the relationship in Pakistan is in need of review and, probably, repair too, the former Chief Justice of Pakistan (CJP), Asif Saeed Khosa underlined the importance just a day before he took over as CJP in January last year. He said:
“Let us discuss the alleged encroachment of the executive domain by the judiciary through interference in matters of policy, the alleged excessive use of its constitutional jurisdiction in matters which are administrative in nature and how best the judiciary can return to its normal but effective adjudicatory role.”
There was a fresh reminder of the possible ‘alleged encroachment of the executive domain by the judiciary’ recently when the Supreme Court passed an order to open shopping malls which were closed down by the government as a coronavirus lockdown measure. The Supreme Court also declared the weekly two-day closure of businesses illegal and also took exception to ‘huge’ spending by National Disaster Management Authority (NDMA) on coronavirus-related equipment and protective gear. The judgment was particularly embarrassing for the Sindh provincial government which, with the largest number of confirmed cases among the provinces and territories of Pakistan, had been forcefully advocating a stricter lockdown.
How far should the judiciary give directions in administrative matters or pass orders in the realm of governance? The question has perplexed the legal fraternity as well as experts and practitioners of governance around the globe and there is hardly any agreement over where to draw the line.
These kind of Supreme Court orders on governance issues have been branded as judicial overreach by some eminent lawyers and lawyers’ organizations. They maintain that the Constitution of Pakistan stipulates separation of powers among the three organs of the state and governance-related decision making is the privilege of the executive which should not be interfered with unless there is a clear breach of law.
Ahmed Bilal Mehboob
If a government is not taking decisive and timely action and as a result the basic rights of people are getting affected, the judiciary usually considers it their duty to fill the gap and give directions.
The Pakistani constitution authorizes the Supreme Court under Article 184 (3), commonly known as ‘suo moto’ powers, to make an order if it considers that a question of public importance regarding the enforcement of any of the fundamental rights is involved. The Supreme Court of Pakistan recently invoked the same powers while reviewing government performance in combating COVID-19.
The reluctance of the parliament in actively exercising its powers of oversight of the executive might have also prompted the Court to take suo moto notice in this case.
Parliamentary leadership was taking time to agree on the dates when the two houses of parliament could meet and whether the sittings would be virtual, in-person or hybrid. The parliamentary committee especially constituted by the Speaker for the oversight of government performance on COVID-19 could not proceed apace because the Speaker himself fell victim to coronavirus and had to confine himself to his residence. Finally, when the two houses met briefly, the members of the ruling party and the opposition preferred to score political points rather than debate the strategy to combat the virus. If the legislature does not like suo moto notices, it needs to improve its performance, it seems.
The Pakistan Bar Council, Supreme Court Bar Association and legal experts in general have historically opposed the arbitrary recourse to Article 184 (3) by the Supreme Court.
Also, there is a legacy of ‘expensive’ judgments made by the Supreme Court in the past especially while dealing with technical subjects. For example, Pakistan faces a penalty of $6 billion imposed by the International Centre for Settlement of Investment Disputes (ICSID) in 2019 partly because the Supreme Court had struck down the Reko Diq mining contract signed between the government of Balochistan and an international company, TCC. Another example is that of the Turkish Karkey Power Company which successfully won an ICSID award of US $860 million against the government of Pakistan in 2017 because the Supreme Court had ordered the termination of the contract with Karkey.
These kind of Supreme Court orders on governance issues have been branded as judicial over-reach by some eminent lawyers and lawyers’ organizations. They maintain that the Constitution of Pakistan stipulates separation of powers among the three organs of the state and governance-related decision making is the privilege of the executive which should not be interfered with unless there is a clear breach of law.
Reverting back to the analysis by the former CJP Khosa, should his idea of holding an inter-institutional dialogue at the summit level be seriously considered in order to avoid ‘encroachment’ of one organ into the turf of the other?
– Ahmed Bilal Mehboob is the president of Pakistan-based think tank, PILDAT; Tweets at @ABMPildat