Judicial activism

Justice Saqib Nisar has overlooked the fact that strong judicial leadership can also change the fate of the judiciary

Judicial activism is back with a vengeance, and this time it is being spearheaded by Justice Saqib Nisar, Chief Justice of Pakistan (CJP). Certain questions pique one’s mind about this scenario. 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?

It is possible perhaps, that this a part of the judicial politicking that has been taking place since Nawaz Sharif was ousted from the Prime Minister’s office on July 28, 2017. Like him or not, Nawaz had a strong support base which the Supreme Court has upset since then. As a result, the judiciary finds itself in need of some good PR.

This has resulted in a new kind of judicial activism in which a team of judges leaves the safe confines of the court, visits certain public places and enquires 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 about the problems of corruption and inefficiency they face in the lower judiciary.

The team did not 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 bring cases to a conclusion and let them either linger on or eventually be 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 the centre of attention because it has been the centre of judicial aversion after 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 ‘strong leadership can change the fate of the people,’ he obliquely blamed politicians for not possessing leadership qualities. On the same day, a befitting reply came from PPP Chairman 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 snubbed the judiciary again 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 has overlooked the fact that 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 idea of ‘serving the people’ under the rhetoric of judicial activism remains vacuous when the direction of the activism deliberately avoids the higher judiciary

The first place to defend the basic rights of the 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 authorise 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 the 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 people’s lack of trust in the judiciary can be traced back to this protectionist policy. People fear the emergence of a judge mafia.

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


The writer can be reached at qaisarrashid@yahoo.com

Published in Daily Times, January 25th 2018.