EDITORIAL: The nation is much wiser about the respective positions and jurisdictions of parliament and the judiciary in the state’s crucial affairs because Chief Justice Qazi Faez Isa allowed live coverage of hearings of the Supreme Court Practice and Procedure Act 2023 — just as he broke from recent convention and ordered a full court – than it would have been if people had just heard about the verdict in the news.
It was indeed in keeping with the spirit of transparency in the workings of all institutions; perhaps the main reason why bar and bench alike have mostly welcomed the 10-5 majority decision that sustains the Act, declaring “constitutional” a law that mandates a committee of three senior judges to form benches for cases that involve constitutional matters of public interest.
Interestingly, while the court upheld the law itself (10-5), and the right to appeal in future cases by 9-6, it denied the same right in cases already decided by 8-7.
The main reason this decision has been widely welcomed is that the system that concentrated all administrative powers in one person, the chief justice, it was not only undemocratic in principle but increasingly so in practice as well.
In the last year or so alone, it had done considerable damage to the image of the superior judiciary just when the political system was suffering some of its worst spasms in history.
The new CJ must be credited for letting cameras into the courtroom despite the risk of being cornered by a section of the full court on live TV, and for willingly divesting his own powers to uphold the letter and spirit of the constitution.
So, the episode that began with the Bandial court pre-emptively holding the Act in abeyance, which stoked controversy and left a bad taste, has come to a befitting conclusion.
Parliament is supreme, as it should be in any working democracy, and all institutions must bow to legislation it enacts within the confines of the constitution in the interest of the people.
In that sense, the part of the verdict that holds the right to appeal retrospectively as ultra vires of the constitution can also be addressed down the road, but by a constitutional amendment that requires a two-thirds majority.
The picture will become clearer when a detailed order is issued, no doubt, but questions of a section of the judiciary that fears this verdict might erode the institution’s sovereignty can and should be addressed immediately.
Their worries about what could happen in the future seem to revolve around the hypothetical, though by no means improbable, situation where parliament might overstep its own constitutional limits.
And the CJ repeatedly dismissed such concerns as “conjecture” during the hearing because, legally, what might or might not happen at some point in the future has no bearing on the interpretation of the constitution as things stand today. And that, lawyers must know, was the limit of this particular case.
Since justice must not only be done but also seen to be done, the new CJ’s decision to broadcast the case live will go a long way in reviving the public’s faith in the judicial system. In a way, the real test of CJ Isa has only just begun, now that he’s got an important procedural matter out of the way.
He made numerous references to instances where the legal fraternity might also have erred in the past, besides reminding all present (and watching on TV) that cases must be wrapped up quickly because it is the public’s time, trust and resources that the courts run on.
He will no doubt be mindful of the differences that exist between their lordships, some of which spilled out into public space because of the live coverage. How successful he will be in taking everybody along remains to be seen.
Copyright Business Recorder, 2023
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