- Proponents of judicial activism should look at pendency
Judicial activism and judicial restraint have always remained debatable as both have various ways to deal with judicial review. In the former, judges interpret the constitution in their own perspective while the latter respects the point of reference in passing decisions. The bright side of judicial activism involves its actions that are against the irresponsible government. Its proactiveness buttresses the groaning of the public. However, on the dark side, judicial activism is used as an illegitimate tool for political rhetoric. Judges perceive and decide cases based on their own policy preferences rather than faithful interpretation of law. When personal vendetta is involved in activism, then government machinery stops working efficiently and is unable to operate with the best of their understanding and resources. In Pakistan, the dark side of activism embraced by several judges to politically intervene in the executive branch’s work, overshooting their own institution’s mandate, shows that a strong pillar of democracy is malfunctioning, with many factors examined later. The doctrine of trichotomy, of the separation of power among Judiciary, Executive, and Legislature, has been compromised for several decades now.
Judicial activism has gained pace since Former CJP Saqib Nisar crossed Former CJP Iftikhar Muhammad Chaudary in taking suo motu notices while working far beyond their jurisdictions. CJP Saqib used his suo motu authority extensively in his 11 months’ term, extending from issues of contaminated water to extrajudicial murders. Apart from cases against parliamentarians, he heard many cases regarding water, health, education, population control as his main priorities.
From making surprise inspections of prisons to confiscating alcoholic drinks to removing taxes levied on mobile phone calls it must have been an adrenalin rush like no other. However, his collection of Dam funds was bewildering as how could the Chief Justice, not the Prime Minister, become better able to comprehend water emergencies? He achieved another level of bigotry when he took suo motu notice of a speech against the judiciary made by PML(N) leader and ex-state minister Talal Chaudhry. JS Mill said “the problem with any effort to suppress nonconforming viewpoints is that the guardians wrongfully presume their own infallibility”. Do the top judges or all power holders suffer from such self-presumed infallibles, and believe themselves above their critics?
The sustainability of a government is dependent on the role of the opposition. It reminds the legislature and executive branch what is absent in their approaches, and how they can oblige with more efficiency. The other Pillars of democracy should focus on their domains for the greater good
Barking up the wrong tree is nothing but an indecent choice. This set precedent has proved lethal in the prevailing time of Covid-19, as CJP Gulzar Ahmed was just a step behind in removing the most, at least in present times, important position holder Dr. Zafar Mirza, special assistant to prime minister on health, although he is unelected. The respected CJP, expressed anger that the “top court” was not satisfied with the performance of Zafar Mirza as a health adviser. While the statement is true in its essence as, disappointingly, in Pakistan there are fewer and more irregular tests than in other affected countries, which means a large number of potentially infected people are out in the open and may be transmitting the virus. In addition, locking down the country without satisfactory testing and targeted isolation is a recipe for economic disaster. However, when the CJP blatantly mentioned in his statement that “the top court” is not satisfied with performance, did he overlook the reviews of public, only mentioning the top court? In democracy, which is already at war in Pakistan, people mainly hold public representatives accountable, and not apex institutions. Institutions are themselves accountable to the public, so the CJP’s statement is only half-complete. Moreover, the statement is exceptionally ill-timed as everyone is fighting against an invisible foe. The apex court should have done this before or at the time of illegal appointment of unelected people to positions of advisers and special assistants with the status of federal minister, rather than muddy the waters in a time of approaching calamity.
The sustainability of a government is dependent on the role of the opposition. It reminds the legislature and executive branch what is absent in their approaches, and how they can oblige with more efficiency. The other Pillars of democracy should focus on their domains for the greater good. Let’s say the proponents of judicial activism are on the right track, then they must throw a glance at the jarring number of cases pending in the courts of Pakistan. Out of 1.9 million pending cases in Pakistani courts, thousands of pending banking cases are resulting in slowdown of banks lending to private sector, and around 43,000 belong to the Apex court. Expanding pendency is horrible and worrisome. Who would become proactive in serving justice; certainly not one who is busy in suppressing dissenters or one who is busy bedazzling himself with his intellect in a time of a pandemic? Who would take notice of a judiciary that is lacking in professionalism, or I would say lacking in everything including basic humanity?
A brutal and soul-shaking incident of injustice has been seen recently when a girl, married as a child and wrongly imprisoned for nearly 20 years, is now set free; can someone on earth compensate her 20 years? A big No! This girl is set free yet, there are many others who were hanged and afterward declared innocent. Who shall raise a cry of dismay? An absolutely miserable travesty of justice has taken place, but to whom shall the question of accountability be asked about the judgment? I leave it to the court, the institution that claims to serve justice.
