2016 Global Review of Constitutional Law

concerns in an agreement by Pakistan to purchase
LNG from Qatar at seemingly inflated
prices as well as the government’s willingness
to support the foreign policy objectives
of the Saudi government in the Middle East
even when this does not appear to be in Pakistan’s
best interests.
Other Decisions Impacting Judicial Power
Upon assuming office, Chief Justice Jamali
declared 2016 to be the year of judicial
accountability. However, the Chief Justice
failed to make any stride towards reinvigorating
the Supreme Judicial Council, the
constitutional body mandated to hold judges
accountable. Nonetheless, one decision of
the court went some way towards instituting
good administrative practices in the judiciary.
In the Islamabad High Court case, the Supreme
Court entertained a petition under its
Original Jurisdiction questioning the legality
of administrative appointments, promotions
and transfers at the time of the founding of
the High Court of the capital territory.10
The Supreme Court found several instances
of irregularities and breaches of rules in
the appointment and transfer of the administrative
staff in the High Court. As a consequence,
one judge of the Supreme Court
who had been the chief justice of the High
Court during the impugned period resigned
from his office. The case set an important
precedent for transparent and meritocratic
processes in the appointments, promotions
and transfers of administrative staff not only
in the courts but also other public organizations.
In addition, a handful of suo motu
cases taken up by Chief Justice Jamali nominally
continued the practice of the court taking
up human rights issues based on media
reports. There is no clear pattern or logic to
these rare suo motu actions beyond a minimal
assertion of the court’s power to undertake
such actions.
Postscript on the Panama Case
In January 2017, a reconstituted five-member
bench of the Supreme Court took up the
issue of the Panama leaks, corruption charges
against the Prime Minister and his family,
and his potential disqualification —matters
that had been belatedly and grudgingly taken
up by the Jamali-led bench in late 2016 and
had been left unresolved after the consumption
of considerable court time. After regular
hearings, the bench reserved its judgment on
February 23. On April 20, after a delay of
nearly two months, the bench published its
much-awaited judgment according to which
Prime Minister Nawaz Sharif narrowly avoided
immediate disqualification.11 Instead,
by a narrow majority of 3-2, the court ordered
the creation of a Joint Investigation Team
composed of members from various civilian
and military agencies to investigate the
charges of corruption and money laundering
against the Prime Minister and his family.
While only the two judges in the minority
found sufficient basis to disqualify the Prime
Minister without further investigation, all
the members of the bench recorded adverse
observations against him. It appears that the
majority of the Supreme Court bench essentially
decided to kick this political football
further down the field, thereby ensuring that
the Panama leaks controversy will continue
to dominate Pakistan’s politics for at least a
few months.
The majority decision in the Panama case
saga represents to some extent a hangover of
the reluctant constitutionalism of Chief Justice
Jamali’s tenure. Billed by some as the
anti-Chaudhry court, the Jamali-led Supreme
Court tried to make a virtue of indecision and
lack of purpose by claiming a righteous form
of judicial restraint. Its ultimately futile attempt
to stand fully apart from political controversies
that only an impartial and credible
judiciary may resolve highlights the lasting
legacy of the Chaudhry era. Pakistan’s superior
judiciary has irreversibly evolved from
a peripheral institution to a central player
in constitutional politics and statecraft. The
strength of the dissents in the Panama case
may indicate that in the coming years the Supreme
Court may finally learn to embrace its
prominent role and adjudicate challenging
constitutional controversies with credibility.
10
Muhammad Akram v. Registrar, Islamabad High Court, P.L.D. 2016 S.C. 961.
11
Haseeb Bhatti and Naveed Siddiqui, ‘Panamagate verdict: PML-N declares “victory”, Supreme Court orders JIT probe of Sharif family’ (The Dawn, 20 April
2017) https://www.dawn.com/news/1327961/panamagate-verdict-pml-n-declares-victory-supreme-court-orders-jit-probe-of-sharif-family.
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