One flew over the cuckoo’s nest

We are a society which does not wake up or reacts to rotten judicial system until we hear about rape and murder of of innocent children like Zainab

The recent decision of the judicial commission to elevate Justice Syed Mansoor Ali Shah to the Supreme Court reminds me of a 1962 novel, ‘One flew over the cuckoo’s nest’. The novel revolves around a story about a rebellion which transpires against the functionaries running the affairs of a mental institution.

The narrative serves as not only a study of the institutional processes and the human mind but also a critique of behaviourism and celebration of humanistic principles. The cuckoo’s nest is a metaphor for a mental hospital and, at present, it would not be absurd if the same metaphor is referred to a society in which we are living.

If somebody as capable as Justice Syed Mansoor Ali Shah makes an effort to reform the judiciary through sheer hard work and brilliance, then it is resisted and eventually, the task remains unfulfilled.

The question arises if the honourable Chief Justice was trying to revamp the system, why was there a need to elevate him to the supreme court when we all know that his efforts of bringing reforms in the judiciary would not be completed and eventually would come to a halt.

If somebody like Justice Shah exercises his judicial review powers and takes measure to bring reforms, then such a change is resisted, and people involved are compelled to leave

I quite often hear from professional lawyers that it was during his tenure from 2009 to 2018 that the jurisprudence developed in constitutional matters, including taxation matters, environment, minority’s rights, and persons who have a disability or any issue pertaining to human rights violations. He is the only judge in Lahore High Court in recent years who showed courage to take actions against the illegal appointments made by the executive.

It was due to his judgement reported as PLD 2013 Lahore 343 that the scope of the writ of quo warranto was expanded and finally a principle was delineated that any person from the society, whether he is actually aggrieved or not, can challenge the illegal appointment of a public office holder (including a civil servant) made by the executive.

In this case, the appointment of the chairman of Pakistan Telecommunications Authority (PTA) was challenged, and finally, his appointment was declared illegal. Justice Shah further elaborated in the judgement that if a civil servant wants to challenge his own posting or transfer then the appropriate forum would be the service tribunal but if an ordinary citizen challenges the illegal appointment of a civil servant or public office holder then the appropriate forum will the Honourable Lahore High Court in a writ of quo warranto.

It was due to his judicial activist approach that the public functionaries owe fiduciary duties towards the public. Hence, any public-spirited individual can challenge the illegal appointment as it is a matter of enforcement of principles of merit, transparency and good governance.

Similarly, in another landmark case pertaining to the involvement of public exchequer’s money of worth Justice Shah declared the appointment of Maryam Nawaz Sharif as chairperson youth loan scheme illegal in violation of the principles of transparency. The judgement is reported in a law journal as PLC C. S 2016 Lahore 269.

It was due to the intervention of Justice Shah that, for the first time, the fundamental rights of persons suffering from disability were enforced. In a reported case PLD 2017 Lahore 1, the honourable chief justice declared the recruitment policy ultra vires and unconstitutional which had barred the persons suffering from disability from applying for the job of becoming educators.

Another significant measure was the establishment of green benches in the Lahore High Court to take cognisance of environmental degradation. Recently, he took notice of the negligence of the environmental department as well as secretary environment who showed negligence in the enforcement of environmental laws to curb the deleterious effects of smog across the province of Punjab. The judgement is reported as PLD 2018 Lahore 1 in which the honourable chief justice directly held Punjab government liable for not taking appropriate steps against the industrialists and also reprimanded the health department for not declaring a public health emergency.

It was during his tenure that minorities’ rights were given importance. Since 1947, a law namely Christian Divorce Act 1869 was in effect, which had entitled a Christian man to divorce his wife on one ground only and that was to impute the charge of adultery and prove it to divorce his wife.

Unfortunately, the parliamentarians of our country did not do enough to reform this law, and it was due to the indulgence of honourable Justice Shah, who enunciated a judgement reported as PLD 2017 Lahore 610 in which he restored the repealed section 7 of Christian divorce act 1869. Now both the Christian men and women can part their ways on just and reasonable grounds or either with mutual consent rather imputing the charge of adultery which is below the dignity of a man and woman.

We area society which does not wake up or reacts to the rotten judicial system until we hear an innocent girl like Zainab gets raped and brutally killed, and if somebody like Justice Shah exercises his judicial review powers and takes measure to bring reforms then such change is resisted, and people involved are compelled to leave. Eventually, we end up living in a cuckoo’s nest.

The writer is a human rights and constitutional lawyer

Published in Daily Times, January 26th 2018.