Time for the Supreme Court to Adopt Responsive Judging

As a nation, Pakistan is no stranger to political turmoil and constitutional crises. The recent dissolution of two provincial assemblies in Punjab and Khyber Pakhtunkhwa and the subsequent delay in holding elections in these two provinces has triggered yet another crisis that threatens the country’s democratic process.

Following the dissolution, the Supreme Court of Pakistan took suo moto notice to decide the matter. Initially, a nine member bench had been constituted to hear the matter. However, two honorable judges (Justice Athar Minallah and Justice Yahya Afridi) disregarded the need to invoke suo moto jurisdiction and dismissed the matter, followed by another two honorable judges disassociating themselves from the bench for personal reasons. The nine member bench, including Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail, decided to refer the matter to the honorable Chief Justice for reconstitution of the bench vide order dated February 27, 2023. Ultimately, a five member bench, including Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail, had been constituted to hear the matter.

This five member bench decided the matter on March 1, 2023 by a 3-2 majority directing the Election Commission of Pakistan (ECP) to propose dates to the President of Pakistan for holding polls within 90 days, as required by the Constitution, or, if not possible, with the barest minimum deviation from the 90-day duration. Importantly, Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail dissented with the order of the other three honorable judges while appending their separate short orders. Pursuant to the order, the ECP started making arrangements and announced elections in Punjab for April 30, 2023.

On the night of March 22, 2023 the ECP announced that it would be postponing the elections announced earlier for Punjab, citing the inability of law enforcement agencies and other concerned government departments to extend their necessary support in holding the elections. This act of the ECP was alleged to be a flagrant violation of constitutional provisions and the Supreme Court’s earlier order dated March 1, 2023. The Pakistan Tehreek-e-Insaf (PTI) submitted a petition challenging the legality and constitutionality of the ECP’s decision before the Supreme Court of Pakistan on March 25. The matter was fixed for hearing on March 27 and the court issued notices to the respondents for further hearing on March 28. Notably, on the date of the first hearing i.e. March 27, Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail also happened to issue detailed reasons for their dissenting notes provided in the earlier order dated March 1. They emphasized and clarified that their decision had concurred with the earlier decision of Justice Yahya Afridi and Justice Athar Minallah in dismissing the suo moto proceedings thus making the order of the court a majority of 4-3 instead of a majority of 3-2. The judgment inter alia also highlighted the reservations of the two honorable judges regarding the existing powers of the honorable Chief Justice pertaining to the invocation of suo moto jurisdiction and the constitution of a bench.

The split has posed a big challenge for the apex court in deciding the matter of delay in elections and all eyes have been on the Supreme Court of Pakistan for its ruling to determine the future of Pakistan’s constitutional politics. In such situations, the concept of “responsive judging” and “responsive judicial review” may provide valuable guidance to the apex court of Pakistan in navigating complex issues.

“In general terms, judicial responsiveness is an acknowledgement by judges that the law is not an autonomous field of activity answerable only to its own norms, but is rather a semi-autonomous practice embedded in society, which answers to the desire for justice of members of that society.”

– [Sourdin & Zariski, What Is Responsive Judging? 2018].

At its core, responsive judging is about adapting to the changing needs of society and remaining open to new perspectives and approaches. The principles of responsive judging are crucial to ensure that the court remains attuned to the changing political environment and any social movements. Democratic responsiveness, another potential element of responsive judging, requires judges to engage with the values and aspirations of society while making decisions, promoting democratic values and ensuring that judicial rulings are responsive to public opinion. This entails engaging with public opinion and values to ensure that decisions are informed by the democratic aspirations of the Pakistani society.

Responsive judicial review on the other hand requires judges to remain open to changing social and political contexts when interpreting the Constitution and making decisions. In the current situation, this means that the Supreme Court must be willing to take a fresh look at the constitutional provisions governing the dissolution of provincial assemblies and the holding of elections. The court must also be willing to engage in dialogue with all relevant stakeholders to better understand the reasons behind the delay in holding elections and the concerns of law enforcement agencies and other executive departments cited as reasons for the delay by the ECP.

One of the key challenges facing the Supreme Court in this situation is how to balance the need for democratic governance with the need for stability and security. Holding timely elections is essential for ensuring a fair and transparent democratic process. On the other hand, if the security situation is not conducive to holding elections, the safety and wellbeing of citizens must be taken into account. In this situation, the Supreme Court must carefully weigh competing interests and find a solution which equally promotes both democratic governance and security.

Another important consideration for the Supreme Court is how to deal with the decision of the ECP regarding not holding elections. While ECP’s ruling may seem to contradict the Supreme Court’s earlier order, it is important to remember that responsive judicial review requires judges to remain open to changing social and political contexts. The Supreme Court must, therefore, carefully consider the reasons behind the ECP’s ruling and engage in dialogue with the commission to better understand its concerns.

Judges of the Supreme Court can foster collaboration with the relevant stakeholders to develop a legal theory and engage in problem-solving court environments to find a solution that upholds the rule of law and strengthens the legitimacy of the judicial system. In the context of the current crisis, this means that the Supreme Court must be sensitive to the concerns of all parties involved and strive to find a solution that promotes justice and fairness for all. This requires the court to consider the unique circumstances of the case, the political environment and the broader social context in which the case is situated.

To tackle the constitutional crisis arising from the clash between the ECP and the Supreme Court, the court must adopt a dialogic approach to counter relevant democratic blockages. This approach involves engaging in dialogue with all political parties to find a solution which upholds the rule of law and the Constitution while increasing the actual and perceived legitimacy of the court’s decisions. The court must constitute its bench carefully and must carefully choose how it frames the issues at hand and the timing and selection of the case, to maintain its authority and legitimacy. The court should not allow any party to undermine its credibility or authority. A dialogue between the court and the political parties will help find a solution which is acceptable to all and ensure the upholding of democratic values and constitutional principles. The court should seek to be a unifying force in society, promoting social harmony and ensuring the operation of democratic institutions within their respective spheres of influence.

Ultimately, the key to resolving the current crisis lies in the Supreme Court’s ability to remain responsive to the increasing political polarization in society and engage in dialogue with all relevant stakeholders. In doing so, the court can help ensure a fair and transparent democratic process which promotes justice and fairness for all. The road ahead may be long and difficult, but by staying true to the principles of responsive judging and responsive judicial review, the august court can help guide Pakistan through this crisis and towards a brighter future.

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Rana Touseef Sami

Author: Rana Touseef Sami

The writer is a lawyer and currently works as a Research Associate at the University of Antwerp, Belgium. He may be contacted at [email protected]