Daily Times

Had Justice (r) Iftikhar Muhammad Chaudhry still been a part of the judiciary in Pakistan, his judicial activism would have certainly culminated in a plethora of contempt notices to Nawaz Sharif and his belligerent daughter, followed by their possible imprisonment. However, the incumbent Chief Justice has been an incarnation of judicial restraint, despite the smearing campaign by the duo, especially after the dismissal of their review petition. The Judges have chosen to let the review judgment account for the wanton aggression and invectives hurled their way, cognizant of the fact that the noose would be further tightened in the Hudaybia Mills’ case and the accountability court is already on the way to putting the final nail in the coffin of the house of Sharifs.

Isn’t the restraint of Justice Nisar’s court more effective and productive then the unbridled activism of Justice Chaudhary’s court, especially with regards to matters involving the government? Most importantly, what is more alarming is the fact that the path of either activism or restraint that the superior judiciary takes during a particular era has been dependent on the personal demeanor and proclivity of the Chief Justice.

The fault then is not in the institution of the Judiciary but with the people ruling the roost who choose to treat one Prime Minister hailing from a particular party differently from the Prime Minister of another party.  Justice Nisar’s court would have let Yousaf Raza Gillani or Raja Pervez Ashraf go scot-free, while Justice Chaudhary would have hung Mr. Sharif upside down. Similarly, Justice A.R Cornelius would have set aside the action of the dissolution of the first Constituent Assembly and the subsequent Martial Law; while, Justice Munir would have reversed all the good decisions authored by Justice Cornelius. In the same vein, Justice Hamood-ur-Rehman would have declared Zulfikar Ali Bhutto not guilty, while Justice Anwar-ul-Haq would have declared General Yahya a liberator and emancipator of the Pakistani Nation. Whilst the incumbent Chief Justice of Lahore High Court choose to act proactively not only in this matter but also in the mega scandal of the companies in Punjab that have been an enormous source of corruption and waste of public resources for the last decade or so.

The present system of self-accountability through the mechanism of Supreme Judicial Council has been highly inefficient and ineffective, highlighting the fact that self-accountability is no accountability at all in a self-serving milieu like Pakistan

All that ails Pakistan, all the banes thereof and the injustices that have inflicted this country can, therefore, be attributed to pure mistiming of the actors or actions involved. A certain event, offence or action happening two or three years earlier or later would have different judicial outcomes, depending on the preferences of the incumbent Chief Justice. On the other hand, a uniform judicial system would dispense reliable and even-handed justice to everyone and across all time periods. How then can this decay be reversed? Apart from the rot that prevails in the lower judiciary despite the existence of ‘competitive’ appointment procedures, the selection in the superior judiciary based on the personal preferences of a few, especially the Chief Justice of the concerned province, leaves much to be desired.

An apt example is of the recent faux pas regarding the confirmation of the additional judges of Lahore High Court. The Chief Justice of the Lahore High Court originally recommended the extension of the tenure of all the judges before the Judicial Commission for the appointment of Judges, by extending only seven of them, without any just reason for the rejection of the rest. The Parliamentary committee, the second constitutional tier in this regard, has rightly disapproved of the sudden change of mind of the Chief Justice, whilst stressing the need to justify the respective recommendations with cogent reasons. There have been similar incidents in the past, depicting the lack of transparency and merit in the selection of the superior court judges. Hence, the need to develop objective and reliable selection procedures for the appointment of the superior court judges will ultimately set the direction of the Justice system in the country.

Also worth noting, is the necessity to have an impartial and robust accountability system of the judges of the superior courts in this respect. The present system of self-accountability through the mechanism of Supreme Judicial council has been highly inefficient and ineffective, stressing the fact that self-accountability is no accountability at all in a self-serving milieu like Pakistan. Let us hope that the recent commotion in the superior judiciary aiming to hold certain judges accountable is not a merely lip service in order to moderate the clamour for across-the-board accountability by the parliamentarians. Nevertheless, without setting the legal education and profession in Pakistan on the right path, we cannot expect to have competent or honest Judges.

All in all, the instant peace would have most definitely attracted the ire of Justice Chaudhary, followed by contempt notices and the possible internment of the author. However, given the ambience of ‘judicial restraint’ prevailing in the country, it is highly probable that the author would go un-reprimanded and thus live another day to exasperate some other Chief Justice, possibly resulting in his judicial detention soon after. This vicious circle between judicial activism and restraint would continue until the powers that be try to take proactive action to institutionalise this essential organ of the state.

The writer is a Constitutional Lawyer practicing at Lahore; he can be reached on naumanqaiser@gmail.com and @naumanqaiser

Published in Daily Times, November 24^th 2017.