Judicial activism

Daily: Daily Times
Date: 25.01.18

Spearheaded by Justice Saqib Nisar, Chief Justice of Pakistan, judicial activism is fiercely
back. Certain questions pique one’s mind. For instance, Justice Saqib Nisar assumed the
charge of the Supreme Court on December 31, 2016, but he has been found active for the
past one month especially since December 15, 2017. What has made him breach his ten-
month dormancy to invoke judicial activism?

One reason could be that not the serving-people conscience but the guilt of issuing the July
28 judgement on frivolous grounds to disqualify the elected prime minister has brought the
Supreme Court (SC) under pressure. A scathing reaction expressed through greeting the
disqualified prime minister came from the streets such as the GT road rally. Consequently,
there was a need for uplifting the judicial face.

The gnawing of the guilt at the scruples is so strong that a new kind of judicial activism has
been unleashed in which a team of judges leaves the safe confines of the court, visits
certain public places and enquires people about the provision of facilities. For instance, on
December 19, 2017, Justice Saqib Nisar along with two other judges (Justice Ijazul Ahsan
and Justice Umar Ata Bandial) visited Mayo Hospital Lahore unannounced reviewing the
situation of healthcare provided to patients. In principle, the team of judges should have
visited the Lahore District and Sessions Courts unannounced, met the litigants and
enquired them about the problems of corruption and inefficiency they face in the lower

The team did not even bother to pay such a surprise visit to the Lahore High Court, where
any litigant could have informed the team that petitions against the government (or in which
the government is a party) are fixed preferably before the additional (ad hoc) judges.
These judges prefer not to decide the cases and let the cases either linger on or be
eventually shifted to the court of a permanent judge. This malpractice contravenes the
publicly declared statistics dependent claim of Justice Saqib Nisar that the sheer number of
cases overwhelms the judges. Certainly, despite repeated formal requests filed by a
petitioner to decide the matter, if judges keep the cases pending under one ruse or
another, the number so accrued imbalances the case-judge equation. If asked, the Medical
Superintendent of Mayo Hospital could also have shown the team the statistics aspect of
doctor-patient equation, but that could have ruined the whole purpose of the visit. The
tyranny is that for evaluating the performance of the healthcare system, the team visited
the hospital in person, but for the evaluation of the performance of the judicial system, the
team relied only on office-based statistics.

The city of Lahore is a cynosure of many because it is currently the centre of judicial
aversion post-July 28 judgement. The focus of judicial activism on Karachi is to balance the
focus on Lahore. Having found Lahore tranquil and receptive, the team brought along
Justice Asif Saeed Khosa to attend a seminar arranged by the Lahore High Court Bar
Association at Al-Hamra Hall on January 20, 2018. At the occasion, Justice Saqib Nisar
delivered a speech replete with political connotations. For instance, by saying that a “strong
leadership can change the fate of the people,” he obliquely blamed politicians for not
becoming a leader. On the same day, a befitting reply came from Chairman PPP Bilawal
Bhutto Zardari who said at a public gathering in Karachi that “Pakistan will suffer if the
judges in the country continue to ‘play politician’.” In a Tweet, Bilawal Bhutto also launched
a snub when he revealed that the Law Reforms Commission had failed to perform its duties.
Instead of meeting four times a year, the commission has not met once since 2015.

Justice Saqib Nisar overlooked the fact that a strong judicial leadership can also change
the fate of the judiciary. For instance, the Supreme Judicial Council (SJC), which was
formed under Article 209 of the 1973 Constitution to hold judges accountable, can be made
functional. There are several complaints of misconduct against judges pending before the
SJC, which is headed presently by Justice Saqib Nisar. Even complaints of misconduct
against Justice Mansoor Ali Shah, Chief Justice Lahore High Court, who is about to be
elevated to the SC, are also waiting for their hearing and decision.

Article 209 is the product of the parliament elected by the people who do not permit Justice
Saqib Nisar to provide protection to fellow judges from being held accountable. The SJC
cannot be made defunct. The first place to defend the basic rights of people is not Mayo
Hospital but the SC itself. The Constitution bestows on people all rights to know what
happens to their complaints duly filed against the highhandedness of judges. The
Constitution does not authorize anyone to protect a judge from being charged with
misconduct, especially when the facility of Section 14 of Article 209, “Punishment for
frivolous information,” to protect an accused judge is available.

No judge can be above the law and immune to accountability. Subduing Article 209 is
tantamount to protecting judges and muffling the voice of people, who have a right to
complain and get their grievances against judges addressed. The judges cannot don the
attire of self-righteousness and deprive people of their right of having honest and able
judges to decide their cases. It is the people who are taxed to pay the salaries of the
judges, besides meeting the expenses of their associated privileges. The protectionist
policy is the bane of the confidence of people on the judiciary and it is making people
disconcerted with the judiciary. People fear the emergence of a judge mafia.

In short, the idea of “serving people” under the rhetoric of judicial activism remains vacuous
when the direction of the activism deliberately avoids the ranks of higher judiciary. If a judge
is not accountable to people, the judiciary is not serving people, but watching its own
interest: how to devise ways to win populism and earn high salaries, as has been
happening currently.

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