Judicial activism or adventurism? | Pakistan Today

Judicial activism or adventurism?

-From pliant to powerful judiciary-


The Supreme court of Pakistan exercises complete power to form a commission under the Article 183 and 187 of the Constitution of Pakistan

With the revival of creative legal thinking to solve cases, as seen in the judicial activism since 2008 demand for trial, demand for inquiry and demand for investigation triggered after Panama Papers revealed that Prime Minister and heirs have offshore companies. Since then the judiciary witnessed an avalanche of comments, criticism and statements.

The fact remains that, when constitutionalism is the rising power of the judges, nothing is taboo anymore. Thus, putting an end to all the controversy and criticism surfacing in the past, on November 1, 2016, a bench of the Supreme Court headed by the chief justice took a remarkable decision and announced to form a single-member commission to investigate the matter.

Senior advocate Supreme Court M. Azhar Siddique, former media advisor of SCBA, while talking to DNA over a telephonic conversation said, “Under the rule 26, section 75 of the Civil Procedure Code that reads that the ‘power to determine the jurisdiction vests in the superior Courts’, hence, the Supreme Court of Pakistan can exercise the right of forming a commission to initiate investigation.”

DNA talked to Supreme court of Pakistan advocate Salman Akram Raja to take further insight about the legalities associated with the case.

“The Supreme court of Pakistan exercises complete power to form a commission under the Article 183 and 187 of the Constitution of Pakistan,” he said adding that, “there seems no reason why this commission will fail to perform as it is being headed by the apex court.”

“These are fact-finding commissions, formed to investigate into the matter and it is not the first time a commission has been formed to probe the matter, earlier to name a few in the memo-gate scandal and Malik Riaz VS Arsalan Iftikhar such commissions were formed for investigation,” Azhar Siddique said.

“The members of the commission comprise of serving or retired officials, from varies autonomous federal institutions such as NAB, FBR, FIA, Sate Bank or much alike,” he added

Later in a follow-up hearing, the CJP on November 3, announced to probe the case by all means as the court would not be bound by the ToR’s or even if the respondents use delayed tactics.

Hence, it has been observed that such authoritative moves give credibility to the accountability of any institution, especially powerful state institutions.

Though judiciary has adopted the right way for an independent inquiry into the Panama Papers revelations by giving the government and opposition a chance to first to present terms of reference, failing which the court itself will impose the ToR for a prospective judicial commission.

Superior court judges are persons of impeccable integrity and possess a high sense of public service but the question arises could there be a speedy justice?

“Considering g the judicial procedure, a speedy probe will depend on what position the respondents take if the information provided is insufficient for a detailed investigation the proceedings might linger,” Raja said.

On the other hand, Azhar was of the view that the matter will be probed on fast track basis and the final verdict can be even given within 15 days according to the UN convention against corruption 2005.

Analysing the case in-depth, it is a very high profile not only because it has named the elites but because the PM’s future is at stake.

“While, the case is subjuted, the Prime Minister Nawaz might not be asked by the commission to resign but he must do so on the basis of morality,” Azhar Siddique said.

According to Azhar Siddique if the judicial commission finds against him, in such an event, specific charges could be preferred against him which may or may not afford him the option of retiring in peace and luxury. It would be clear and he has to step down from his post on three significant parameters. Firstly, the issue which is deeply rooted down to corruption will be settled there and then. Secondly, a reference would be filed in NAB and the PM would be declared ineligible to hold office and would be disqualified for years. Thirdly, on the grounds of not declaring assets in the Election Commission of Pakistan before contesting general elections he could be declared ineligible and punished accordingly.

On the contrary, Lahore High Court Bar President Rana Zia Abdul Rehman while talking DNA was of the view that in the country taking actions on the basis of morality is rarely witnessed.

Another, interesting aspect of the judgment would be if the decision is against the Prime Minister what course of action would he take next i.e. either seek another legal path or step down from the position?

When asked whether the PM can appeal to the court if the decision is against him Advocate Supreme Court Salman Raja while talking to DNA said that it would be court’s final verdict, the PM cannot appeal but the case could be reviewed and the matter can also be taken to the ECP from where a trial can be initiated from the scratch.

However, Rana Zia believed that if reviewed again a larger bench could be formed to probe the case, but currently, it is a far seen picture.

Obsolete remnants from the past, because of the problems plaguing the institution, can destroy this possible future and faith in the judiciary, therefore, a substantive, independent inquiry is now imminent. 

The good thing is there is little judiciary-executive conflict but the historical verdict that would be announced by the court would be of great significance for the reason that it would prove ‘democracy entails at every tier’.

Firstly, there would be an acceptance of responsibility for one’s decisions. Secondly, the other party accepts that decision and thirdly democracy would be applied at accepting due process too.

Thus in the midst of all this, the focus should be to satisfy the masses where an average Pakistani must become a participant.

On one hand the Sharif’s need to explain how some of the offshore companies were formed in the early 1990s, during his first term in office. On the contrary, if court carries out fairly, expeditiously and transparently, the judicial accountability drive can be a step towards restoring public confidence and trust in the judiciary.

Both Siddique and Rehman while talking to DNA were of the opinion that once the final, historical verdict is announced a precedent will be set by the pillar of the state which would enhance masses faith on the judiciary and the rule of law will prevail.

Moreover, Salman Akram Raja said, “once the verdict of this high profile case is announced and the court manages to satisfy the people of Pakistan than obviously confidence of the masses would be built.”

To conclude, obsolete remnants from the past, because of the problems plaguing the institution, can destroy this possible future and faith in the judiciary, therefore, a substantive, independent inquiry is now imminent. It will also bring the country closer to an independent judiciary, in its true spirit.

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