By Justice Markandey Katju-
(Justice Markandey Katju is a former Judge, Supreme Court of India, and former Chairman, Press Council of India. The views expressed are his own)
An eight-member bench of the Pakistan Supreme Court has stayed the Supreme Court (Practice and Procedure) Bill, 2023, which has not yet become law.
There has been a lot of criticism of this interim order by some lawyers and politicians. In my opinion, the order is innovative, but can certainly not be called bizarre, considering the situation prevailing in Pakistan.
When I heard of the order, my initial reaction was that the Court had overreached. After all, a bill has no legal efficacy until it becomes law. How can something which has no legal efficacy be stayed?
In my judicial career of 20 years (as a judge in three High Courts – Allahabad, Madras, and Delhi – and in the Supreme Court of India), I had never heard of such an order. I thought the petition was premature, and should have been dismissed forthright as such.
But on deeper thinking, I concluded that extraordinary situations require extraordinary remedies, and therefore the order was correct and justified.
The extraordinary situation in Pakistan is that the PDM government is adamant in not holding elections to the Punjab Assembly on May 14 as directed by the Supreme Court, knowing that it will be routed (as all opinion polls indicate). Article 224(2) of the Pakistan Constitution is clear — it mandates elections to be held within 90 days of dissolution of the Provincial Assembly. The Punjab Assembly had been dissolved on January 18, so elections should have been held by April 18.
But the Election Commission of Pakistan, after earlier fixing Punjab and KP Assembly elections for April 30, had postponed it for October 8, obviously under some pressure. The Supreme Court rightly struck down this blatant violation of the Constitution, and since elections could not be held by April 18 as required by Article 224(2), it took a pragmatic approach and fixed it for May 14.
Soon thereafter, however, the Pakistan government led by Prime Minister Shahbaz Sharif said that it rejected the court’s verdict, and, to thwart holding elections on the fixed date, refused to release the funds for this purpose to the ECP by April 10, as directed by the court.
Instead, the PDM government adopted the too-clever-by-half device of referring the matter to Parliament, which, in turn, has referred it to a select committee. This are obviously diversionary and delaying tactics.
The government is also anxious to clip the wings of CJP Bandial, who has stood like a rock in insisting that the Constitution must be followed. The aforementioned bill was obviously brought for this purpose.
In all countries where judges sit on benches (UK, India, Pakistan, etc), the Chief Justice, by long standing and well established convention, is the Master of the Roster. In other words, he has the sole prerogative of constituting benches, deciding which judge will sit on what bench, how many members will be on a particular bench, etc.
But the aforesaid bill seeks to transfer this power to a committee of senior judges, something unprecedented and unheard of. The motive for introducing this bill was obviously to curb the power of CJP Bandial, who is perceived by PDM leaders as pro-Imran Khan, though he is only wanting the Constitution to be followed.
In this extraordinary situation, therefore, extraordinary measures are justified.
A criticism is also heard that why has the CJP formed an eight-member bench with these particular judges on it. To my mind, the Chief Justice has chosen judges that strongly believe the Constitution must be upheld. Why should he include judges who do not share this belief? Why should he include judges who do not observe the long standing, well-established convention that judges should only speak through their judgments, and instead act in a bizarre manner by going to Parliament to speak there, or issue a press note criticising the Chief Justice?
