ISLAMABAD: Justice Ijazul Ahsan of the Supreme Court on Monday expressed his dismay over the tendency of discrediting institutions like the judiciary, saying it did not behove someone to insinuate something merely because a certain judgement did not please them.

“This is the Supreme Court where aggrieved parties come to seek justice,” observed Justice Ahsan, who is a member of a five-judge Supreme Court (SC) bench hearing the presidential reference seeking interpretation of Article 63A of the Constitution that dealt with defection.

Pointing towards Advocate Babar Awan, who was representing Pakistan Tehreek-i-Insaf (PTI), Justice Ahsan told him to “just think about it”.

The observation came a day after the media wing of the armed forces took exception to defamatory remarks made by various political parties against the military and its leadership.

CJP says suo motu exercised after lot of thought, not merely on someone’s wishes

“This is an institutional reaction from the judiciary after the military’s response,” commented a senior counsel on condition of anonymity.

Chief Justice of Pakistan (CJP) Umar Ata Bandial, who was heading the five-judge SC bench, also observed that the court was not condemning the client of the counsel, but one should learn how the system worked, saying the jurisdiction of the apex court did not get invoked automatically by lodging protest before the Election Commission of Pakistan (ECP) or writing letters.

The CJP also wondered why no petition or complaint was ever moved if the parties thought the decision on the Senate elections was not implemented.

“We are not an executive agency and expect action only on petitions or a case before it,” the chief justice observed, emphasising that the traditional function of the Supreme Court was to deliver post-facto decisions.

“We don’t take anticipatory actions,” Justice Bandial explained, making it clear that the apex court had curtailed the practice of invoking suo motu jurisdiction since it should be exercised with great caution because parties never supported or defended it.

The court did not exercise suo motu jurisdiction simply on someone’s wishes rather after a lot of pondering and discussion over its exercise, the chief justice observed, reminding that the apex court had taken the last suo motu in the speaker’s ruling case after 12 judges concluded that the court should step in since a constitutional issue had developed.

Gradually with practice we will settle down principles on how to deal with the exercise of suo motu jurisdiction, Justice Bandial observed and referred to a recent judgement of Justice Munib Akhtar who had explained that the authority to exercise suo motu power vested only with the CJP.

The Constitution unites the federation, and the apex court being the defender of the Constitution would continue to defend it and serve the people despite the fact that it may have to counter criticism, Chief Justice Bandial said.

Referring to what transpired in the Riko Diq episode — a case also taken on suo motu and in which the international arbitration slapped $6 billion penalty on Pakistan — the chief justice observed that senior counsel Makhdoom Ali Khan had told the court that none of the evidence which were presented before the SC during the hearing on the award of the contract to the Tethyan Copper Company Pakistan (TCCP) was ever cited before the international arbitration.

“What happened in the Pakistan Steel Mills case,” the CJP wondered, adding that people think we were not cognisant of the outcome of cases. He regretted that in such matters, the executive failed to perform its duties.

The chief justice made it clear that the Supreme Court had to interpret Article 63A for the generations to come since the Constitution was a living document.

When Babar Awan said he would argue his case while remaining within the confines of good behaviour and mannerism, Justice Jamal Khan Mandokhel reminded him that since he had referred to good behaviour, it should also be disseminated to the people that it was not the Supreme Court which opened late in the evening, rather a case had been heard in Quetta at 2:30am in the night. The counsel, however, replied that he did not want to go into such matters.

At the outset, Additional Attorney General (AAG) Chaudhry Aamir Rehman told the court that the new attorney general of Pakistan (AGP), Ashtar Ausaf — whose appointment was notified by the government later in the evening — might also want to argue.

He said since references had already been sent to the ECP against those who were perceived to have defected and their appeals might come to the apex court, therefore the court should consider giving its determination on the matter on those appeals.

But the chief justice explained that the court did not have the required manpower to constitute a larger bench for such appeals, adding that these appeals would be placed before a three-judge bench.

The chief justice observed that the court would determine the reference on the question of law, adding that it was its responsibility to interpret the Constitution.

The Supreme Court also issued notice to the National Assembly speaker and the ECP in the petition moved by the PTI and argued by Babar Awan.

It should be examined whether Article 63A of the Constitution has the ethos that go beyond the consequence of commission of defection or needed a holistic interpretation of the Constitution, the court observed.

When Babar Awan mentioned about a vilification campaign against President Dr Arif Alvi, saying that the president was ignoring it since he was a learned person and honourable man, the SC chief justice said the court always gave respect to the constitutional institution, especially the office of president, adding that the counsel should bring it to the notice of the court through petitions.

“Don’t you see how much importance the court is according to the presidential reference,” Justice Bandial said.

During the hearing, Advocate Azhar Siddique also expressed the fear that the new AGP might withdraw the presidential reference.

Published in Dawn, May 10th, 2022