Judicial activism is a milder label to express what the Pakistan Supreme Court has done over the decades to frame the national constitutional jurisprudence. Since the 1950s, the Court has validated several military coups that overthrew elected governments. It has bestowed powers on the military dictators to single-handedly amend the constitution. The Court has endorsed the execution of a highly popular prime minister, Zulfiqar Ali Bhutto, in a "murder" case prosecuted under the thumb of a military ruler. More recently, the Supreme Court has disqualified two elected prime ministers, one for contempt of court and the other on a highly technical ground holding that the failure to report an un-received income is a violation of assets disclosure required under the election laws.
After the failure of the courts to prosecute General Pervez Musharraf for various crimes and letting him leave the country, a popular perception circulates in legal circles that the Supreme Court is hurried in punishing elected representatives for minor misdemeanors but incredibly reluctant to demand accountability from military generals who commit constitutional subversions. Pakistan, some jurists would say, is a country where the generals and justices jointly govern to "protect" constitutional democracy.
In Pakistan, the behavior of the Supreme Court as an institution oscillates with the personality type of the Chief Justice. When a Chief Justice craves no personal fame, the Court retreats into a reclusive mode and decides cases without making needless political waves. But when a Chief Justice is ambitious in seeking celebrity status, the Court becomes hyperactive in deciding politically explosive cases that may procedurally belong to lower courts.
The Supreme Court relies on two controversial judicial concepts, the suo motu jurisdiction to bring provocative cases under its original jurisdiction and the contempt of court punitive powers to fine, imprison, and disqualify parliamentarians, ministers, and prime ministers from public office.
Suo Motu Jurisdiction
Article 184(3) of the Pakistan constitution vests in the Supreme Court "original jurisdiction" over "a question of public importance with reference to the enforcement of any of the Fundamental Rights" enumerated in the constitution. The Court may exercise original jurisdiction when an aggrieved party files a petition. However, the Court has also exercised original jurisdiction on its own initiative if the Court finds a question of public importance in the domain of constitutional rights needs attention.
This self-generated original jurisdiction is called the suo motu jurisdiction. (India, Bangladesh, and Nigeria courts have also invoked the suo motu jurisdiction in various cases of public importance.)
The suo motu jurisdiction is a precious tool for a high court to take judicial notice of a pattern of governmental abuse that the state functionaries may refuse to acknowledge or prosecute. For example, a high court may invoke the suo motu jurisdiction to demand state accountability for enforced disappearances and torture of journalists. In a suo motu case, the Pakistan Supreme Court prohibited the "public hangings . . . of even the worst criminals."
However, the Supreme Court uses the suo motu jurisdiction to intervene in cases that properly belong to the trial courts. For example, in a recent rape-murder case of a seven-year-old girl, which shocked the nation, the Court stepped in to oversee the police investigation of the case. Despite the good motive, the Court overlooked the fact that the Pakistani police known to frame innocent persons to "solve" intricate crimes could turn even more untrustworthy if placed under high-pitched pressure.
In the same case, the Court also took judicial notice of a TV talk show where a news anchor made outrageous accusations involving the defendant. The Court summoned the anchor, along with a dozen other news and media personalities to investigate the accusations. The courtroom scene mimicked a tribal Jirga as different media persons were supplying spontaneous advice to the Justices regarding what needed to be done.
By invoking the suo motu jurisdiction, the Supreme Court harms the function and credibility of trial courts. Furthermore, the provincial high courts are empowered to intervene under the suo motu jurisdiction if such intervention is necessary in select cases. No harm will occur if the Supreme Court entrust the suo motu jurisdiction to provincial high courts under some supervisory strictures and extricate itself from summary trials of questions raised in the electronic and print media.
Contempt of Court
Article 204 of the Pakistan constitution, titled Contempt of Court, vests in the Supreme Court and other High Courts the power to punish any person who disobeys court orders, obstructs the process or scandalizes the court or a Judge of the Court. In 2012, The Supreme Court invoked this constitutional power to remove Prime Minister Yousaf Gilani, who refused to obey an order. Last week, the Court ordered the imprisonment of a ruling party Senator who "scandalized" the Court through his speeches.
A few days ago, the Supreme Court Chief Justice took suo motu notice of anti-judiciary speeches by a minister and summoned him to appear before the Court. Several petitions have been filed under Article 204 against former Prime Minister Nawaz Sharif and his politically active daughter for giving disrespectful speeches against the Supreme Court Justices who removed the prime minister from office.
The 2012 Contempt of Court Act restricts the consequences of contempt of court by limiting fine and punishments. The Act permits "fair comments about the general working of the courts (or on the merits of a decision of a court) made in good faith in the public interest and in temperate language." The Act provides punishment for contempt but also allows court forgiveness if a bona fide apology is tendered at any stage of the proceeding.
Thus, the faultfinders of the Supreme Court and High Courts tread a fine line between permissible criticisms of the Court and its decisions and the constitutionally prohibited scandalization of the Court and its judges. Cases show that the inflammatory language in which the criticism is expressed is a prime factor in contempt convictions. In severe cases of contempt, the Court rejects a bad faith apology tendered merely to escape punishment.
Much like the suo motu jurisdiction, the contempt of court provision is trickier in the application and its overuse is potentially injurious to the credibility of the high courts. Given the unfortunate history of the Supreme Court in upholding military coups and refusing to punish defiant military generals either under the suo motu jurisdiction or the contempt of court provision, political parties believe that the Court uses these constitutional weapons only against elected officials, including parliamentarians, ministers, and prime ministers.
The suo motu jurisdiction is a precious legal tool to protect fundamental rights when state institutions decline to prosecute the perpetrators of torture, enforced disappearances, and extra-judicial killings. Likewise, constitutional protections against willful disobedience of court orders and indiscriminate vilification of judges ensure an independent judiciary committed to furnishing justice under the law. These constitutional instruments are efficacious when used thriftily and only in exceptional cases. As a broad principle, judicial restraint on part of the nation's highest court is a superior value to judicial hyper-activism.
L. Ali KhanKhan has devoted much of his academic scholarship to Islamic law and conflicts involving Muslim communities. Khan has participated in Islamic law symposia and contributed ground-breaking articles on Islamic jurisprudence. In addition to law articles and academic books, Khan also writes for the popular press in the United States, the Middle East, and the Indian subcontinent, including for the BBC, Press TV, and NPR.
Suggested citation:L. Ali Khan,Pakistan's Hyperactive Supreme Court, JURIST — Academic Commentary, Feb. 9, 2018, http://jurist.org/forum/2018/02/L-Ali-Khan-pakistan-supreme-court.php
This article was prepared for publication by Sean Merritt, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to him at email@example.com