SC exceeding the limits?
September 23, 2011
The International Commission of Jurists (ICJ), an international human rights non-governmental organization, in its press conference, blamed the Supreme Court of Pakistan (SCP) for exceeding its limit while taking up suo motu porceedings.
The Commission comprises of 60 eminent jurists (judges and lawyers), including members of the senior judiciary in Australia, Canada, and South Africa. The former UN High Commissioner for Human Rights and President of Ireland, Mary Robinson, was the president of the Commission from 2008 to 2010, and in January 2011, Pedro Nikken has taken her place.
Stefen Trechsel, ICJ mission chief, after meeting a number of lawyers, legal experts of Lahore, Karachi and Islamabad, and former law minister Dr. Babar Awan, conducted a press conference, in which he suggested that SCP should exercise restraint in taking up suo motu proceedings because overuse of the provision could endanger the rule of law.
The visiting ICJ mission recommended the criteria for the use of suo motu procedures and for the allocation of cases to benches. Trechsel said the legal professionals and members of the bar appeared divided over the use of the suo motu proceedings by the Supreme Court. He said the Supreme Court had occasionally gone too far and ought to exercise more judicial restraint.
He said: “No one gave clear indications on how the limit ought to be drawn.” Mr Trechsel said the mission could not meet Chief Justice Iftikhar Mohammad Chaudhry.
The other members of ICJ arrived in the country under the commission’s South Asia Programme to examine the independence of judiciary since the lawyers’ movement. The mission members observed that the judicial activism of SCP might be understandable to some degree and gave the perception in some quarters that the state had not always been able to discharge its responsibilities.
In a sharp reaction, SCP Registrar DR. Faqir Hussain Khokhar rejected the ICJ’s observations. In his reply circulated in the print and electronic media, Mr. Khokhar stated that the observation of the ICJ member was based on some miscomprehension, perhaps ignorance of the constitutional provisions and case law developed on the issue. The SCP statement claimed that the people of Pakistan are generally appreciative of the exercise of such jurisdiction by the SCP, as through this power relief is granted to aggrieved parties, especially poor and under-privileged sections of society.
“Article 184(3) of the constitution mandates the SCP to take up the cases of violation of fundamental rights. The court enjoys this jurisdiction concurrently with the high courts. The procedure for processing such cases is prescribed in Order XXV of the Supreme Court Rules, 1980. The issue was long settled by the Supreme Court in successive judgments including the case of Benazir Bhutto vs Federation of Pakistan (PLD 1988 SC 416),” the statement further added.
The Supreme Court Bar Association (SCBA) has also condemned the ICJ statement. SCBA General Secretary Qamar Zaman Qureshi said that he would take up the matter at an executive meeting and inquire as to why the ICJ issued such kind of a statement after holding meetings with a few lawyers.
Qureshi said that ICJ members did not meet representatives of lawyers. “Therefore, the commission stands totally ignorant of the judicial system of Pakistan. He said the ICJ members held meetings with those lawyers who were not part of restoration of judiciary’s movement.
Some critics are of the view that ICJ’s observations were manipulated by those who could not digest the judicial activism. They also express doubt over the methodology adopted for collection of information and selection of the personalities.
On the other hand, legal experts also expressed their concerns over growing pendency of routine court cases. They said due to SCP suo motu proceedings, litigants are suffering delays in disposal of their cases of minor nature.
Sometime, it becomes a panic for a private or government department of other cities to stay in Islamabad for more than a day because due to hearing of public interest litigations, their cases could not be taken up by the court.
Legal experts, however, believe that judiciary in Pakistan is passing through an evolutionary phase, and in order to strengthen it and to remove the mess of the past, its powers should not be curtailed at any cost.