The doctrine of separation of powers, having its origin in the classic work of Montesquieu's Spirit of Laws, and articulated into a constitutional principle, to safeguard liberties from the Government, in the US constitution, has no textual basis in our constitution. On the other hand, our Courts have identified and recognized a slightly different principle of trichotomy of powers under the constitution. The executive, legislature and judiciary have been established as separate branches of the Government by the constitution. Having inherited parliamentary form of the government, the executive needs to enjoy the confidence of the National Assembly as provided in Article 91 of the constitution, enjoining upon the Prime Minister to be a member of the National Assembly for other Cabinet members to be or become members of Parliament to continue in office beyond 6 months. The principle of responsible government given in Article 91 (6) of the constitution also blurs the ideas of separation. Thus the principle of separation of powers is not followed in Pakistan. Similarly, the Chief Justice of Pakistan and other members of the superior judiciary may be assigned extra-judicial duties under the Constitution and law. Chief Justice appoints arbitrator in some matters under the constitution. There are instances when Chief Justices even became acting Presidents.
Like others, solely on a constitutional premise, it was argued previously that frequent exercise of suo motu jurisdiction by the Supreme Court did not achieve the expected public good. On the basis of larger constitutional principles of rule of law and due process, it was submitted that its frequent, selective and sometimes personally motivated exercise, particularly against private persons and companies by notionally tagging a state function thereto, proved counterproductive. No substantial reforms followed despite frequent interventions. Moreover, personal grievances were expressed. Loud complaints were made about the suffering and expense incurred in facing those proceedings. More importantly, in those complaints, there was strong reference to personal humiliation faced in the courtroom that was instantly telecast that occurred during high emotions and loss of temper. Lofty claims of self-righteousness and unmitigating desire for publicity also severely damaged the process. Any good sought to be achieved, looked elusive. One finds it hard to cite a suo motu case that led to a lasting change. History happens to be a cruel judge. In the ultimate analysis, it is thus more important that peoples' confidence in the state institutions and more particularly in the judiciary remain unshaken.
Every judge has his own legal philosophy. The incumbent Chief Justice started raising issues of public concern even before assuming the instant office particularly for the betterment of the city of Karachi. He is firm in his resolve, sincere in his purpose and right in his approach in taking up these matters in the exercise of the original jurisdiction of the Supreme Court when there is a direct public duty involved under the Constitution or law. Within the constitutional domain, enforcement of fundamental rights, assurance of the good governance and upholding the rule of law as mandated by the Constitution remain primary duties of the courts, particularly of the Supreme Court, whose original jurisdiction under Article 184(3) of the constitution provides a quick judicial redress for addressing public grievances without the trappings of the procedure and proof of standing required under Article 199 of the constitution. Public opinion supports infrequent actions under this precious power.
It is a pity that unlike the US, EU and some neighbouring countries where several public spirited national governmental organizations are there to invoke the jurisdiction of the superior courts, our Supreme Court has to take note of the violations of the fundamental rights by the executive on its own. The court cannot look the other way when there are constant violations of fundamental rights by the governments, cartels and the mighty in the society in connivance with the executive and their instrumentalities. Granted that thick skinned and shrewd officials only move once brought in the dock but at the same time rights, guarantees and process provided in the constitution must not be ignored on the way.
On a reflection, it would be more appropriate that public spirited persons, having no personal motive and angle are involved and encouraged to institute proceedings on issues of public importance under Article 184(3) of the constitution. In this way, jurisdictional facts would be proved properly, due process shall be observed and other branches of the Government, both federal and provincial and their instrumentalities, shall get a fair chance to defend them. To bind down the executive and its officials, they must be ordered to file properly sworn affidavits so that they are held liable in case facts are misstated. It is equally important for the rule of law that while enforcing a duty, granting or depriving a right, depriving a privilege or denying immunity that due process of law is strictly followed. No room for complaint or criticism is left. Justice is not a cloistered virtue. It should be allowed to suffer a public criticism. While issuing orders and directions, it would do good if the Supreme Court stops at passing orders awakening the executive from its slumber and make them realize their constitutional and legal duties of making decisions according to law and the constitution while maintaining the spirit of principle of trichotomy of power so that the executive or other any branch of the Government take the full responsibility of (mis)deeds and wrong policies in people's court in whose name they rule. Nepotism and the culture of violating merit in public offices needs to be discouraged and for which judicial remedy of quo warranto is available. But more importantly, it is also important that the exercise of suo motu jurisdiction is institutionalized under the Rules of the Supreme Court to avoid its disuse with the change of offices of the Chief Justices.
Nation is faced with a problem of great magnitude of Covid-19. The right to life guaranteed by the constitution is at a great peril. The state unfortunately lacks resources to fight the pandemic. It cannot feed scores of millions of jobless. Its economic vulnerability is fully exposed. If there is no new fresh borrowing from IMF and World Bank, and suspension/rescheduling of the debt, it might default. States cannot be run on donations. Absence of any visible and viable policy is only adding to the problem. There is no time for trial and error. The steel frame, i.e., bureaucracy is practically non functional as it lacks, without very few exceptions, competence and integrity. The state is practically crippled. The topping is the shameful favouritism and violations of merit across the board.
Our constitution envisages a cooperative federalism. Instead of handling these great issues through spokespersons and talk shows, a vibrant institution of Council of Common Interests is provided in the constitution for such eventualities should be activated to formulate sound policies and to provide solutions short of an emergency in the face of these mammoth problems. Paltry state resources are being wasted by mismanagement.
A selective and purpose oriented suo motu exercise of the original jurisdiction for the enforcement of fundamental rights only against Governments having imminent impact upon the nation and to ensure good governance, leading to lasting reforms would be welcome step.
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