Daily Times

The recent increase in judicial activism has made the Supreme Court a key player in agenda setting. The apex court has been taking up high-profile cases.

In 2017 alone, the Chief Justice of Pakistan took 34 suo motu notices under Article 184 (3) of the constitution. These notices pertained to, inter alia, torture and harassment of women and children, practices of vani and swara, environmental pollution, sale of substandard food items, hikes in fee by private schools and colleges, VVIP protocol, and conditions of government hospitals.

Some of the notable cases include the murder of Mashal Khan, Tayaba torture, and the poor conditions of Katas Raj temple.

These notices, in the aggregate, have generated quite a stir. Some of these issues have been widely reported and covered by the media. Why this interest develops is easy to follow: if the Supreme Court decides to exercise its jurisdiction on an issue; it has already pre-determined that the issue is of ‘public importance’. Secondly, during such proceedings in original jurisdiction, the apex court invariably has a thing or two to observe about the quality of performance of coordinate branches. At times, such observations or remarks are directed at some fairly senior members of the coordinate branches. All this has a recipe of a good story; and if that story unfolds on the highest stage of them all — it offers extraordinary opportunity of manufacturing interest of public with necessary spins and slants!

Mainstream media, we believe, despite the social media networks, remains integral for both supervision and development of agenda setting.

Supreme Court’s notices often follow with heavy media coverage.

The recent assumption of jurisdiction in the Zainab’s case and the formation of JIT is an example. What begins from merely reporting of court proceedings transforms into an active collaboration between certain sections of media and the court on agenda setting, as we observed during the Chaudhry-era.

Despite our criticism for Chaudhry-era Supreme Court, we seem to be repeating the same mistakes.

What begins from merely reporting of court proceedings transforms into an active collaboration between certain sections of media and the court on agenda setting

The court, even then, deliberated on a number of issues with little or no deference shown to other arms of the government. The matters included, inter alia, failure of government to have proper control over the prices, particularly the prices of articles of daily use and essential commodities, closure and suspension of broadcasting and transmission of media houses, Hajj Scam of 2010, issues concerning housing schemes, contamination of water in Mancher Lake, law and order situation in Karachi , corruption in rental power plants etc. Apart from its corrosive effect on the separation of powers, orders passed in these proceedings made negligible or no impact on the resolution of aforementioned issues.

No doubt, these issues were mainstreamed. But it is not the role of the Supreme Court to mainstream certain issues or push them into public discourse through original jurisdiction. The recent wave of judicial overreach, apart from placing Supreme Court in the agenda setting, has also collaterally glided it into a political thicket. Navigating through this haze would be a challenge. As we learned, the hard way, last time; such judicial overreach, may generate public interest momentarily but in the long run, the consequences are severe as public confidence in the institution is undermined.

When the judges or their remarks receive more media coverage than the actual issues, it becomes clear that the apex court has itself became a story.

The idea that superior judiciary must act in its original jurisdiction because the executive fails to do its job is simultaneously too broad and too narrow. It provides unprecedented justification for the Supreme Court to interfere in all matters reserved for coordinate branches. On the other hand, it over-simplifies, even trivialises; the great, complex and ever-unfolding exigencies of running the government. With restraint as the guiding principle, original jurisdiction ought to be employed sparingly, only for enforcement of fundamental rights of the people who are poor and weak. In the nutshell, we don’t want populism from our Supreme Court. We have been there and fought that fight but we came out bruised.

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, February 2^nd 2018.