Supreme Court's dismay

A five-member bench of the Supreme Court (SC) headed by Chief Justice of Pakistan (CJP) Gulzar Ahmed, while hearing the suo motu case on May 4, 2020 regarding measures taken by the federal and provincial governments for preventing the spread of Covid-19, expressed its dissatisfaction and even dismay on a number of issues surrounding the matter. The SC wondered whether the shutting down of businesses paying taxes to the federal government by the provincial governments without the permission of the President was a violation of the Constitution's Federal Legislative List and Articles 18 and 151(4). Nor was the court satisfied with the National Coordination Committee's April 14, 2020 meeting that only identified the Standard Operating Procedures (SOPs) to be followed by citizens instead of framing a proper policy. The SC expressed the hope that all the respective governments would sit together to frame a uniform national policy within one week, otherwise the court may be constrained to issue an interim order on the same. The unending war of words between the federal and Sindh governments (both before and after the pandemic struck) troubled the court on the one hand, while the almost complete standstill in economic activity imposed by all governments to a greater or lesser degree seemed to the SC as if all the governments had been conspiring against the people's welfare and fundamental rights. The SC was also not happy with the Sindh government's allegedly allowing businesses to open if applied for, implying kickbacks or corruption may be involved. Attorney General for Pakistan Khalid Jawed attempted a respectful argument to remind the court that the country was passing through an extraordinary situation and such matters were best left to parliament and the executive to sort out. On the other hand, industrialists and exporters in Karachi refuted any implication of bribery or corruption in the matter of allowing exporting units to restart operations while adhering to all necessary SOPs.

The apprehension with the SC's suo motu intervention in arguably the greatest health and economic crisis Pakistan, and indeed the world, is facing is the tendency, based on past experience, of such interventions exceeding the constitutional separation of powers amongst the judiciary, legislature and executive. Not only that, there have been instances when the respect and dignity of the apex court was affected negatively when its orders could not be implemented for being inherently difficult if not impossible. A prominent example is the order of the then CJP Iftikhar Muhammad Chaudhry's court in a suo motu case to reduce the prices of sugar. Since the commodity's price was determined by a host of market factors, the order proved infructuous. It was his court that could be said to have set the judicial precedent of more or less abandoning the time-honoured principle of judicial restraint and embarking onto the terra incognita of judicial intervention. In the present suo motu case too, while it is easy to appreciate the SC's concern about the manner in which the pandemic challenge is being met and admittedly, the confused, hesitant approach of the federal government and its perceived hostility towards the Pakistan People's Party government in Sindh has produced even more difficulties in an already difficult crisis, but to go from there, to an attempted intervention into the matter runs the risk of embarrassing the court if its orders cannot practically be followed or implemented. With the utmost respect, the SC may be better served generally by a return to the principle of judicial restraint.