“Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well-settled principles of law will bend”—Northern Securities Co. v. the United States, 193 U.S. 197, 400-01 (1904) (Holmes, J., dissenting)
Consequent to the judgment of the Supreme Court in Constitution Petition No.22 of 2022 against the ruling of then Deputy Speaker Punjab Assembly, Sardar Dost Muhammad Mazari (voted out from this position on July 29, 2022 after a no confidence motion), Chaudhry Pervez Elahi belonging to Pakistan Muslim League Quaid-e-Azam—PML(Q)—was declared a winner. He later took oath as the Chief Minister of Punjab from the President of Islamic Republic of Pakistan, Dr. Arif Alvi. The entire episode of the Chief Minister of Punjab’s election—earlier Hamza Shahbaz Sharif was victorious, then disqualification of 20 members of the provincial assembly, later limiting the powers of the executive head of the province and ultimately deviation from earlier judgments pronounced by the apex court—has intensified the ongoing political chaos in the country.
The Federal Government, led by Pakistan Muslim League (Nawaz)—PMLN— that assumed power in April 2022 with the help of Pakistan Democratic Alliance (PDM) that includes the Pakistan Peoples Party Parliamentarians (PPP) in the midst of an economic crisis, left by the Pakistan Tehreek-e-Insaaf (PTI), has expressed its serious concerns and reservations over the judgment of the honouable apex court. Critics have termed it to be in contrast with judgments and orders passed by larger benches of the Supreme Court in the past and according to them it tantamount to selective application of law leading to uncertainty as well as lacking fairness and uniformity of equal treatment in similar circumstances.
However, it is not a new example, set by the senior judges of the honourable apex court. There are many occasions in our history where superior judiciary’s judgements came under criticism by legal experts, politicians, and even by the public at large. The Federal Court in its decision reported as PLD 1955 Federal Court 240 in the case of Federation of Pakistan v. Maulvi Tamizuddin Khan, justified the dismissal of the elected assembly, based on the doctrine of necessity. The use of this doctrine, for the first time in our judicial history, is considered till today as the root cause of weakening democratic institutions and norms.
Subsequently, the apex court in Dosso vs Federation of Pakistan justified the illegal action of a dictator by calling it a revolution. The verdict in Zulifqar Ali Bhutto case is considered as the worse example of injustice in Pakistan’s judicial history. Without extending him a fair trial opportunity, the Court awarded him death penalty. This decision was viewed with criticism at both local as well as international level. The way the trial court and then the Supreme Court handled Bhutto’s case and issued a guilty verdict is termed as judicial murder by global legal fraternity. The former US Attorney General Ramsey Clark called it a mock trial fought in Kangaroo courts.
However, it appears the judiciary has yet not learnt its lesson from the consequences faced by the entire country because these judgments have created political turmoil and resultantly, due to ineffective institutions and selective justice have wrecked democratic norms. Unfortunately, the apex court in Zafar Ali Shah case not only facilitated the dictator by justifying his action of abrogating the Constitution of Islamic republic of Pakistan [“the Constitution”] but went a step ahead to strengthen his rule by allowing him to amend the same. Thereafter, the court not only interfered in political but also in commercial matters announcing judgments, which later incurred heavy costs to the national exchequer.
In 2017, the Supreme Court ousted a three-time elected Prime Minister, Nawaz Sharif, on the charges of not receiving salary from an already dissolved company, owned by his son. Many claim that it was done despite “clear provision in the Income Tax Ordinance, 2001 that individuals are not obliged to declare salary income on accrual basis of accounting”. However, many cite section 69(c) of the same law providing a contrary treatment in certain cases. For the majority any amount that had already been written off and where the payer no longer existed could not be termed as an asset, both in legal and accounting terms. Furthermore, when a statement of assets and liabilities is filed by the elected representative, it is required to be filed on cash basis, not on accrual basis of accounting negating the concept of receivables and payables. Apart from this case, there are numerous examples where the higher judiciary was alleged to have crossed the mandated limits of law.
However, despite the above, the Parliament has failed to regain its authority under the Constitution. The Charter of Democracy was signed by Muhammad Nawaz Sharif and Mohtarma Benazir Bhutto focusing on judicial reforms and eliminating the future role of the judges who took oath under the Provisional Constitutional Order (PCO). However, while drafting the 18th Constitutional Amendment, PPP reminded the opposition party, led by Nawaz Sharif (co-signer) of the important document, regarding eliminating the role of PCO judges, but they straightaway refused the proposal siding with Justice Iftikhar Chaudhary, (who took oath under the PCO). Resultantly, the Supreme Court of Pakistan has been headed by the PCO judge. Parliament remained toothless, whereas in the coming days, the involvement of the apex court in administrative matters rendered the government almost dysfunctional.
It is high time for the Legislature and Executives to regain their powers by introducing comprehensive judicial reforms where judges are made accountable for their conduct. Their appointment and removal should be made through Parliament and proper mechanism of checks and balances be provided against the discretionary powers available to the Chief Justice of Pakistan under Article 184 of the Constitution and in the matter of constituting the benches.
Moreover, it is also the right time to introspect for PMLN that came into power with claims of handling economic and political challenges efficiently. However, to date the economy is on a constant nose-dive where the rupee is depreciating at an alarming pace and businesses are heading towards a shut-down scenario. Their political capital is fast deteriorating. They need to come forward with a clear vision and execute policies for economic revival. Without expressing any regret the Chief Justice has conveniently admitted that his previous interpretation of law was an unconscious act. This varied interpretation of law is a matter of grave concern for the entire judicial system.
The outcome of this judgment will initiate a new phase of political turmoil. However, the current economic situation requires political stability. Pakistan is already at the advanced stages of negotiations with the IMF and any delay can cause irreparable damage. In this entire chain of events, political parties and the mother of all institutions i.e. the Parliament have lost considerable space to the judiciary. A political leader must be mature enough to handle these matters within the arena of Parliament. Similarly, at the same time the courts must be cognizant of their limits and role assigned to them by the Constitution.
There is no doubt that our courts have a long history of compromises and issuing rulings in deviation of the Constitution and the law. This practice can only be stopped by introducing proper controls. The court’s role of acting beyond interpretation of law should be brought under strict accountability. Constitutional amendments or promulgation of any law requires collective wisdom of the majority in Parliament while in some cases two-third votes of the house is required to pass any law. This important constitutional obligation cannot be delegated to unelected judges.
Dr. Ikramul Haq, Advocate Supreme Court, specialises in constitutional, corporate, media, ML/CFT related laws, IT, intellectual property, arbitration and international tax laws. He is country editor and correspondent of International Bureau of Fiscal Documentation (IBFD) and member of International Fiscal Association (IFA). He is Visiting Faculty at Lahore University of Management Sciences (LUMS) and member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE).
Abdul Rauf Shakoori, Advocate High Court, is a subject-matter expert on AML-CFT, Compliance, Cyber Crime and Risk Management. He has been providing AML-CFT advisory and training services to financial institutions (banks, DNFBPs, Investment companies, Money Service Businesses, insurance companies and securities), government institutions including law enforcement agencies located in North America (USA & CANADA), Middle East and Pakistan. His areas of expertise include legal, strategic planning, cross border transactions including but not limited to joint ventures (JVs), mergers & acquisitions (M&A), takeovers, privatizations, overseas expansions, USA Patriot Act, Banking Secrecy Act, Office of Foreign Assets Control (OFAC).
The recent publication, coauthored by these writes with Huzaima Bukhari, is:
Pakistan Tackling FATF: Challenges & Solutions