- Or activism
The judicial activism unfurled by the former CJ Iftikhar Muhammad Chaudhry, which showed growing propensity to overlord the parliament and the executive, seems to have crystallised into judicial imperialism as rightly described by an Islamabad lawyer and constitutional expert Babar Sattar in an article recently published in a national daily. We have a CJ now who relishes hitting the headlines of the newspapers by making statements that have political connotations, threatens to appoint right people in the government departments if things did not improve and does not hesitate to claim and confess that he was compelled to intervene in the domain of the executive.
Hearing a petition about non-supply of clean drinking water and lack of sewerage system in the province of Sind on 31st March he observed that he was compelled to intervene in the functions of the executive due to lack of basic facilities to the citizens. He did not however bother to say who compelled him to intervene: his conscience, any divine revelation, or the constitution of Pakistan.
Well, no matter how well intentioned he may be, there is no justification whatsoever for him to do what he is trying to do. It is morally, legally and constitutionally wrong and is also the negation of the code of conduct for judges issued by the Supreme Judicial Council. On the moral and common sense level he perhaps needs to heed the Urdu dicturm ‘tuj ko parai kia pari apni naber tu’ the English rendering of which is ‘mind your own business’. Water, sanitation and health facilities are the responsibility of the local bodies as per the constitution and not the judiciary. Appointments on posts in the public department and organisations and even the appointment of the judges is an administrative function to be performed by the executive.
Only the PTI is endorsing the actions of the CJ and the stance taken by the party particularly its chairman Imran Khan is well understood in the context of his enmity with the ruling party
Legally and constitutionally speaking an individual or an institution trying to trespass into the domain of other state institution represents breach of the constitution that comes under the purview of article 6 of the constitution. It is a clear cut case of reference to the Supreme Judicial Council against the CJ and other judges who dare to vitiate the constitution through their decisions and conduct. I think the government of the time has shown great restraint and sangfroid in tolerating the judicial imperialism.
The former CJ Iftikhar Muhammad Chaudhry like the current CJ was also very fond of intervening in every issue and even tried to control sugar prices not realising the fact that the prices of the commodities were controlled by the market forces and could not be enforced through judicial commandments. The move backfired and instead the prices went up. The present CJ is also emulating him in that respect.
No doubt there are problems in regards to system of governance and delivery to the masses and drastic systemic reforms are needed to fix those problems. The dilemma is that there is no quick-fix solution. It has to come through political channels and an evolutionary process. Any attempts to fix them through other channels are doomed to fail and create more complications. The CJ is a well-meaning and an honest person as per his reputation but that in no way provides any justification for him or his institution to intervene into the sphere of the other state institutions or try to overlord them against the spirit of the constitution. The judiciary is a custodian of the constitution and as such it is incumbent upon it to comply with it in letter and spirit before advising others to do so.
This country has suffered tremendously due to the indiscretions of the institutions and their proclivities to act as self-styled saviours. One does not need to go into details because the entire nation knows it. Quaid-i-Azam, who himself was a great constitutionalist, envisioned independence of judiciary within the limits prescribed by the constitution. As per our constitution the responsibility of the judiciary is to protect the constitution and dispense justice in conformity with the laws enacted by the parliament.
The reality is that if the executive has some inadequacies and the system of governance lacks the ability to deliver, the judiciary also cannot claim to be free of corruption, malpractices and lacking in its ability to provide quick and cheap justice to the people. Ask the people around the country and they will tell you how they are humiliated in the courts and denied justice through inordinate delays which in civil cases last through generations. I am sure the CJ is well aware of it. He will be long remembered if he could fix the problems in his own institution instead of frowning at others and exceeding the constitutional limits.
All the major political parties except PTI are also wary of the intrusive attitude of the CJP and firmly believe that his actions were unconstitutional and are wondering how he could they stop the CJ in his tracks to undermine the state institutions? The position of PML-N in this regard is well known. The PPP chairman Bilawal Zardari Bhuto referring to the tiff between the executive and judiciary while talking to the journalists in Hyderabad on Sunday said that the latter should do its work and leave the politicians to do their own job because if the politicians were failing at their work then the public has the authority to vote them out.
Only the PTI is endorsing the actions of the CJ and the stance taken by the party particularly its chairman Imran Khan is well understood in the context of his enmity with the ruling party and his burning ambition to enter the corridors of power by hook or by crook. He even sends curses on the parliament and wants to see the back of the PML-N government through unconstitutional means. Similarly his staunch supporter and ally Sheikh Rasheed, who has also thrived during the unconstitutional arrangements, is supporting what the CJ is doing. He even suggested imposition of judicial martial law and CJ’s role in the appointment of the care-taker prime minister knowing well that his demands were unconstitutional. Such is the intensity of their lust for power that they do not even hesitate to undermine the constitution. Thank God the CJ rejected the lure.
I think it was a right time for the politicians to also give a serious thought to changing their style of politics that is steeped into self-aggrandisement and vendetta and collectively work for reforming the system of governance, strengthening democracy by adopting internationally recognised norms and re-asserting the ascendency of the parliament, failing which they would always remain vulnerable to the dictation by the state institutions and powerful individuals. The future of this country is inextricably linked to strengthening democracy and constitutional rule. The nation surely does not need judicial activism or judicial imperialism.
