Daily Times

In modern democracies, judiciary is primarily responsible for dispensation of justice, dispute resolution and interpretation of law. While carrying out these basic responsibilities, judiciary maintains its neutrality and distinction in keeping a check on the executive. This task needs an active but apolitical judicial branch of the government.

On the contrary, our activist judiciary is impulsively taking upon itself the task of correcting the so-called wrongs done to the country. Chief justice of Pakistan (CJP), today, is the most visible state functionary involved in anti-corruption drive, fundraising for dams, raiding hospitals and jails, campaigning for conservation of water and instigating audit of big businesses in the length and breadth of the country. This activist expansion in the judicial duties may look dignified but it has exposed judiciary to a complete new world i.e. a political world.

Supreme Court’s recent awakening against corruption is not synchronized with the traditional role of the institution. Historically, the institution of judiciary was invented to protect individual rights against a monstrous executive which can potentially usurp human rights. Therefore, any governmental action against an individual, who is accused of violation of state laws, needs a judicial approval. Representatives of government agencies are usually required to present undeniable evidence of transgression of individuals in the court before the award of any punishment.

If the judiciary, as in the case of Pakistan, itself takes up an anti-corruption agenda and starts accusing individuals of corruption, which institution will gauge the legality and authenticity of such accusations? By using suo moto powers to summon individuals in the court and direct government agencies to launch investigations against them, the court is working as an extension of the executive. Resultantly, the very institution that is meant to protect individual rights is denying human rights to the accused.

Similarly, campaigning for conservation of water and fundraising for dams are new ventures of Justice Nisar’s judiciary that have exposed judges to a wider world of popularity and controversy. Today, judges are addressing symposium on water, making comments on bilateral water treaties, accusing dam opponents of high treason, addressing press conferences with business tycoons, influencing public opinions and negotiating adjournments with affluent respondent to extract finance for dams’ fund. This extraordinary involvement of judges in public life has generated much controversy and put serious questions on the objectivity of the court.

By using suo moto powers to summon individuals in the court and direct government agencies to launch investigations against them, the court is working as an extension of the executive. Resultantly, the very institution that is meant to protect individual rights is denying human rights to the accused

Honourable CJP has widened the scope of Article 184(3) to an unprecedented level. Raiding hospitals, universities and jails to ensure implementation of law, which originally is an executive domain, is his elaborate comprehension of original jurisdiction of Supreme Court under Article 184. CJP’s implementation model- a mixture of surprise raids and public appearances coupled with a lot of media visibility- resembles that of Shehbaz Sharif, the former chief minister of Punjab. This growing involvement of judiciary in administrative affairs has thinned the line between judicial and executive branches of government.

Judiciary has been largely endorsing ‘doctrine of necessity’ until as late as March 2009, when deposed judges were restored by the government as a result of lawyers’ movement. The dreams of ‘rule of law’ and ‘independence of judiciary’ sold to the nation during the said movement are yet to be realised.

Unluckily, judiciary once again seems to be sinking in new and captivating bog of ‘popular doctrine of necessity’ as it endeavours to deliver where governments failed. Despite popular sentiments in favour of judicial activism, judges must show judicial restraint in order to exemplify ‘rule of law.’ A restrained judiciary will be best equipped to actively focus on its primary responsibility of dispensation of justice and protection of rights.

After reinstatement of Justice Iftikhar Chaudhary in 2009, the nation witnessed a rejuvenated judiciary that abundantly used its suo moto power but little progress towards rule law could be seen. It has been observed that an activist judiciary attracts political controversy that reduces its capacity to dispense justice in accordance with Article 10 of Judicial Code of Conduct. This practice of the superior court not only undermines distinctive role of judiciary but also disturbs power equilibrium between state institutions. Fatefully, an activist judiciary can uphold neither its detached position nor objectivity. Therefore, it can be safely said that an active judiciary could better ensure rule of law and protection of individual rights as compared to an activist judiciary.

The writer teaches Political Science at GC University Lahore and can be reached at aamir9465@gmail.com

Published in Daily Times, October 30^th 2018.