Daily Times

At last credit to our Supreme Court (SC) for finally getting it right in disposing of Dr Tahirul Qadri’s petition challenging the composition of the Election Commission of Pakistan (ECP), after a spate of highly questionable orders, decisions, verdicts such as in the NRO, memo, Gilani cases. etc. The SC correctly ruled — though after three days of political grandstanding — that the petitioner lacked legal standing to file his petition before the SC and thus his petition was not admissible for hearing.

Since, among other things, the time and resources of the highest court of the land are both limited and valuable, anyone who submits a petition to the SC must meet certain criteria before his or her petition can be admitted. Those criteria, or what is called locus standi, or legal standing, requires that the petitioner must have suffered in fact a direct and personal not general, an actual not speculative or prospective or hypothetical, a concrete not abstract or hypothetical, injury or harm at or before the time of filing his/her petition.

It was plain that Maulana Qadri failed to meet the criteria on all counts: the ECP did not violate any of his fundamental rights, nor was any actual harm or injury caused to him before the filing of his petition.

Some may view this proper and wise decision on Qadri’s petition as a harbinger of the SC’s changing attitude brought on by the sobering effect of its rebuff by the Swiss authorities in the NRO case. If so, such a change will be a welcome course correction of the direction of the judicial pendulum that had begun to swing dangerously towards the extremities of judicial overreach.

Firstly, the judiciary, on the road to judicial redemption, must rectify and reverse some of its most glaring and dubious decisions or orders to instil trust and legal soundness in its deliberations. For starters, in view of the vindication of the former prime minister, Yousaf Raza Gilani’s constitutional posture by the Swiss rejection of the letter, it behoves the judiciary, in all fairness and justice, to reverse and set aside his improper disqualification from parliament.

In a similar vein, the petitions filed by Nawaz Sharif and others in the memo case should now be deemed inadmissible and dismissed, since just like the petitioner Qadri, they too lacked legal standing to file a petition against ex-ambassador Haqqani, as no actual injury or harm in any manner was inflicted on them by the alleged memo to a US general.

During the hearing of Qadri’s petition, the honourable judges made much issue of his foreign citizenship, ruling that he was not a genuine ‘stakeholder’ in Pakistan’s mileu. But what about the foreign nationality of Mansoor Ijaz, whose testimony was the very basis of the memo case? Is he more of a stakeholder in Pakistani politics than Maulana Qadri? At least the latter was also a Pakistani citizen.

Secondly, the judiciary in its own interests and in the interests of strengthening our other institutions like the police, investigative agencies, etc, should display selectivity in entertaining suo motu petitions. It should admit only those petitions concerning egregious cases where human life is involved or where lower courts cannot be approached for relief on a constitutional matter. The biggest culprit and the source for derailing the judiciary from performing its core function of adjudication of disputes or cases by adversaries that are brought before its docket on appeal for final resolution is the thoughtless ‘suo motu’ provision of Article 184 (c) (3).

For one thing, suo motu actions by the courts in such mundane issues as price fixing of samosas, sugar, CNG, etc, bureaucratic transfers, etc, have degraded the exalted status of the superior judiciary to the level of an ombudsman or investigative agency. For another, it has the effect — unintended or otherwise — of intervening in the proper functions of the executive and legislative branches, thus breaching the constitutional wall of separation of powers.

The suo motu provision as provided in our constitution is indeed unique, rather unheard of in any other democratic country of the world. Article 184 (c) (3) granting this unnecessary, superfluous and almost limitless jurisdiction to the apex court is a legal nightmare. Thus, the burden is also on parliament to redraft and streamline its language and severely restrict its scope and application. Why give an activist judiciary the temptation to exploit this seemingly endless power under the pretext of matters of ‘public importance’ (almost everything can be construed as of public or national importance) or ‘enforcement of fundamental rights’?

Thirdly, the SC should faithfully abide by the established principles of law and the constitution, both in letter and spirit. Disrespecting fundamental rules of law do not constitute ‘independence of the judiciary’.

We all know the bizarre and incredible saga of the NRO case and the letter where the entire nation was held hostage for three years to the judiciary’s open defiance of the immunity provision of our constitution and the basic judo-prudential rule that bars the judiciary from adjudicating an expired or dead law like the NRO.

Fourthly, the judiciary must stop playing the role of political leaders, giving political speeches and issuing statements on matters that are part of the political, executive or legislative domains, such as governance, elections, future legislation and amendments, etc.

With all due respect, apex judges are not elected leaders of the country. They are appointed and are accountable to no one. If they simply focus on their job, performing their constitutional duty of interpretation of law and speedy resolution of real disputes between parties, they will do just fine.

Finally and fifthly, the honourable SC should utilise its contempt powers very sparingly so as not to run afoul of the basic and more weighty constitutional right of free speech of the people. Exercise of this power should be limited to situations where possible ‘contempt’ is committed by the litigant parties themselves only within the court premises.

Yes, the judiciary should ‘pity this nation, this poor, caged and bedevilled nation, which doles out enough largesse from its meagre resources for the judiciary. Even without indulging in judicial fantasies, there is enough work for the honourable judges to throw a lifeline and some hope to victims trapped in a convoluted corrupt, cavernous, contrived system of justice. For starters, what about clearing some of the logjam of thousands upon thousands of pending cases in the SC’s and other courts’ dockets, Mr Chief Justice?

The writer is a corporate attorney, author and a freelance analyst and columnist. He can be reached at Tausifkamal@hotmail.com