Judicial activism…

…or, reincarnation of the doctrine of necessity

Chief Justice Iftikhar Muhammad Chaudhry, speaking at the annual dinner of the Lahore Bar Association last Saturday, urged the people not to vote for the parties who were misguiding the people and promoting anarchy. While it is hard to take an issue with what he said, it is unbecoming of a top judge to make statements of the political nature. This is not the first time he has done so. During the hearing of the cases and speaking on similar forums with unprecedented frequency, he has been hitting the headlines on political matters and making no bones about judiciary assuming the role of a saviour.

It is most unfortunate that the saviour syndrome which has been the biggest tormentor of this nation refuses to recede and continues to pummel the hopes of this land of the pure to tread the path of its cherished destiny. First, it were the military adventurers assuming the role of the self-styled saviours and now we have judiciary. The lawyers’ movement that promised the emergence of a new dawn heralding independence of judiciary has only proved to be a transition from one disaster to another.

The dream for an independent judiciary has gone awry. The testimony to this fact came from a former and the most respected judge of the Supreme Court, Justice (retd) Sardar Muhammad Raza, who in an article recently published in the national dailies frankly admitted that the present judiciary was not independent and the conduct of the judges giving disparaging remarks during the hearing of the cases was also contrary to their code of conduct. He impliedly expressed concerns about corrupt judges, talking judges, judges with bias, petulance and prejudice and judges indulging in naked usurpation of the legislative function under the disguise of interpretation.

An independent judiciary functioning within the constitutional parameters, defined under the principle of trichotomy of powers, is universally accepted as a custodian of the constitution, a bulwark against the indiscretions and unconstitutional acts of other institutions of the state and the protector of the fundamental rights of the citizens. It is supposed to dispense justice according to the constitution and law ensuring that it does not transgress into the domain of other state institutions. The courts are not supposed to make laws or interpret them in breach of the recognised norms of interpretation or give them meaning to assuage the popular sentiments.

Unfortunately, some of the decisions given by the SC smack of all the above mentioned abominations. It has cast itself in the role of legislators, encroached upon the powers of the parliament in certain cases and shown an irresistible propensity to meddle into the affairs falling within the constitutional jurisdiction of the executive. Fixing the prices of commodities, interfering in the postings and transfers of the bureaucracy, restricting development expenditures and other budgetary allocations approved by the parliament and taking suo motu notice of everything under the sky has in fact paralysed the functioning of the executive.

Justifying the intervention of judiciary on the ground that the executive has failed to solve the problems of the people and they look up to the court to redress their grievances, is tantamount to reincarnation of the doctrine of necessity which the CJ claims to have buried forever. An Islamabad based constitutional lawyer, Babar Sattar, in his recent article referring to the indiscretions of the SC said, “There can be a legitimate debate on the need or scope of a ‘political question doctrine’ as part of our constitutional law that strikes the right balance between judicial activism and restraint. But to argue that that the judiciary intrudes into the province of the executive out of necessity when people look up to the ‘peoples’’ court in utter helplessness, is just that another doctrine of necessity”.

Leaders of the bar associations, Human Rights Commission of Pakistan, eminent constitutional experts, international commission of jurists and some respectable justices from other countries have also been expressing concern over the phenomenon of judicial activism in Pakistan and its knack for an overreach. A former Judge of the Indian Supreme Court, Justice Karmandey Katju, in an article published in an Indian newspaper, commenting on the judicial activism in Pakistan in the wake of dismissal of the former prime minister, said “How can a court remove a prime minister? This is unheard of in a democracy. The prime minister holds the office as long as he has the confidence of the parliament and not the confidence of the Supreme Court. I regret to say that the Pakistani Supreme Court, particularly its CJ has been showing utter lack of restraint. This is not expected of superior courts. In fact, the court and its CJ have been playing to the galleries for long. It has clearly gone overboard and flouted canons of constitutional jurisprudence.”

There is also no dearth of constitutional lawyers who have been highlighting the indiscretions of the SC conceding that the judiciary has indeed been trespassing into the area of responsibility of the other organs and it has also violated internationally recognised principles of jurisprudence and the limits set by the constitution. Even the lawyers who were in the forefront of the lawyers’ movement, like Ali Ahmed Kurd, Aitzaz Ahsan and others, have expressed their disappointment over the way the SC is conducting itself in breach of the constitution that it is supposed to protect.

Not only the CJ but also the other judges of the SC are relishing the spectacle of hitting the headlines through their remarks during hearing of the cases that have political connotations. The extraordinary interest shown by the media in the proceedings of the SC and expression of unqualified support to its decisions and the conduct of judges is also, to a great extent, responsible for the burgeoning judicial activism. Similarly, the support to the controversial decisions of the SC by the opponents of the government without really bothering to judge the decisions at the touchstone of constitutional norms and principles of jurisprudence has also contributed to this phenomenon and scuttled the chances of seeing a really independent judiciary in Pakistan, as pointed out by Justice (retd) Sardar Muhammad Raza.

The writer is an academic.