The Supreme Court’s review decision in the Hourbara Bustard case has become the focus of much attention recently; so much so that the Supreme Court Bar Association (SCBA) President voiced “serious concern” over Justice Qazi Faez Isa’s dissenting note in the case. For those unfamiliar with the case, the long and short of it is as follows. In 2014, the Ministry of Foreign Affairs granted permission to various Arab dignitaries to hunt Houbara Bustard in certain allocated areas of Pakistan. These permits were challenged respectively before the Sindh High Court and the Baluchistan High Court, both of which declared them to be without legal authority. Appeals were filed by the Government, but these too were dismissed by the Supreme Court.
In hearing these appeals, a three member bench of the Court, then headed by Chief Justice Khawaja, also allowed a petition which called for a complete ban on the bird’s hunting. Not satisfied with these decisions, the Federal and all of the Provincial Governments (with the exception of KPK), filed review petitions. By majority vote (4-1), a five member bench of the Court headed by Chief Justice Jamali has now determined that the Court’s earlier order was tainted with an “apparent error on the face of the record”. Accordingly, it was set aside.
What makes the Court’s review decision so remarkable is not simply the fact that a major decision delivered only a few months back has been overturned. It is also the shoddy manner in which the Court achieved this objective. And it is here that Justice Isa’s dissenting note becomes particularly relevant. Justice Isa, who authored the judgment under review, starts his note with a scathing criticism of the decision to constitute a larger bench for hearing the review case. In particular, Justice Isa highlights that “Justice Dost Muhammad Khan, who had earlier heard the case and who by the Grace of the Almighty is not suffering from indisposition on account of failing health” was purposefully excluded from hearing the review case.
It is clear from the dissenting note that not only was there no “error on the face of the record” requiring a review of the original judgment, but that a deliberate attempt was made to change the composition of the bench so that this determination could be avoided. The question then is what motivated the Chief Justice to take this action. After all, assuming that the Chief Justice is a rational actor, why would he take an action which is expected to draw hard-hitting criticism from his colleague, among others?
On the surface it appears that the Chief Justice’s order to constitute a larger bench and the consequent review decision was ideologically motivated. This is evident in part from the review decision itself, which calls for judicial restraint and requires each organ of the state to function within its “sphere of jurisdiction”. This approach which stands in direct contrast to the Supreme Court’s prior activism, has even led some commentators to refer to the current Court as an “Anti-Chaudhry Court”.
While, ideology often does play an important role in judicial decision making, it is likely that it wasn’t the major driving force behind the Chief Justice’s actions in the Houbara Bustard case. After all, Chief Justice Jamali supported the majority view in the 21st Amendment case, which upheld the Court’s authority to review and annul any Constitutional amendment. Compared to that case, the Houbara Bustard decision was only a minor infraction (if any) on the Parliament’s authority. Moreover, commentators must appreciate that the Houbara Bustard decision is not the first review decision rendered by the current Chief Justice.
In October of last year, similarly, a decision by a three member bench of the Supreme Court headed by Chief Justice Khawaja was set aside in review by a five member larger bench after Justice Khawaja’s retirement. The decision in question was the suspension of Mr. Ali Zafar’s license to practice before the Supreme Court. So what motivated the Chief Justice then? Since the Chief Justice’s power to constitute benches is discretionary, one can only wonder at the wisdom behind the constitution of larger benches (in contravention of convention and rules) to hear the review petitions for these cases. One explanation however could be the strategic importance of these cases.
The Houbara Bustard case was exceedingly important for the Federal Government. In its arguments before the Court, for instance, the Government argued that inviting Arab dignitaries to hunt in Pakistan was a “cornerstone” of its foreign policy. In similar vein, Mr. Zafar’s case was so important to the Bar that the suspension of his license led to an unprecedented boycott of the reference held in honor of the outgoing Chief Justice.
By tasking the review of these decisions to larger benches, the Chief Justice sent a clear message: these cases are important and they deserve to be heard by judges who may afford a different perspective on the matter. In doing so, the Chief Justice appears to have made a strategic decision; he appeased the Government and the Bar, both of which are critical to the implementation of the Court’s decisions and its authority.
The question then is: if this was indeed his strategy, did it work? On the surface, it appears so. Considering the SCBA’s “concern” over Justice Isa’s dissent, the Chief Justice appears to have won over the support of some strong friends. But while all looks bright and beaming right now, a potentially explosive issue is lurking in the shadows. This issue concerns the Court’s unbridled suo motu powers and the mechanism for appointment of judges.
Soon after being elected as the President of the Supreme Court Bar Association (SCBA), Mr. Zafar wrote to the bi-partisan Parliamentary Committee (PC) on Judicial Appointments, for purposes revisiting the judicial appointment mechanism as well as curtailing the Court’s suo motu powers. Earlier this year, the PC invited the SCBA President to discuss these proposals in greater detail. As an upshot of these discussions, in January a firm constitutional package was presented by the SCBA to the Committee for onward introduction as a bill in Parliament.
This package if accepted will among other things: change the composition of the judicial commission (JC); provide powers to the PC to reverse any decision of the JC; bar the superior courts from entertaining any matter relating to decisions of the JC or the PC; limit the Chief Justice’s powers to appoint adhoc judges; and provide a right of appeal for suo motu cases. While the policy behind these proposals can be debated, one thing is clear – the Supreme Court, and, in particular, the Chief Justice’s authority appears to be under attack.
It is in times like these that one is reminded of Nicolo Machiavelli’s timeless wisdom: It is better to be feared than loved. By pandering to the executive and the Bar, the Chief Justice has in a sense shown weakness and opened himself up to attack. Judicial politics is about to get very interesting.