Daily Times

Much has been said and much has been written on the menace of judicial activism of Pakistan’s Supreme Court (SC), but hardly any worthwhile, effective solution, other than platitudes of restraint, has been offered to curb the menace.

When we speak of judicial activism we tend to speak in broad spectrums, although in actuality its Pakistani version is more egregious and audacious than what is generally implied in democratic countries.

For instance, in the US, judicial activism of the supreme court involves expansion of fundamental rights guaranteed by the US constitution. It was epitomized by the decision in Roe v Wade case where the US Supreme Court expanded the constitutional right of privacy to include the “penumbra” right to have an abortion, even though the right was not provided in that way in the US constitution.

But judicial activism of our SC is more like judicial excessivism as it erodes some of the bedrock principles on which our constitution and republic are based.

Judicial activism by our judiciary may be classified into two broad categories. Firstly, SC’s interpretation and misuse of suo motto provision of Article184 (3) of our Constitution as a limitless jurisdiction and power to issue orders on any matter under the sun on the pretext of fundamental rights- Chief Justice (CJ) Ch Iftikhar and CJ Saqib Nisar being its celebrity practitioners.

Much has been said and much has been written on the menace of judicial activism of Pakistan’s Supreme Court, but hardly any worthwhile, effective solution, other than platitudes of restraint, has been offered to curb the menace.

The second category of SC’s judicial activism has a long history of medddling in political domain, dismissing heads of governments, legitimizing unconstitutional coups and overthrows of our constitution.

Such activism took root as early as 1955 when in the Tamizuddin case CJ Munir justified the illegal dissolution of the Assembly on the grounds of the ‘doctrine of necessity’. From then on, the doctrine assumed a life of its own in a stunning series of landmark cases.

In 1958, CJ Shahabuddin validated Gen Ayub’s coup and Martial Law; in 1999, CJ Siddiqui legalised the overthrow of our constitution and Gen Musharraf’s coup; in 2012, CJ Chaudhry Iftikhar dismissed an elected PM Gilani for contempt of court; in 2017, CJ Nisar disqualified PM Nawaz Sharif from National Assembly for life and as head of his political party.

To counter such debilitating judicial excesses many well-meaning legal experts hope and pray for judges who are not guided by blind ambition and greed for power. They hope for rational and wise judges with a built-in sense of judicial restraint.

However, relying on just the persona of judges for judicial restraint is a risky proposition. What is needed is a permanent, institutional solution that’s not solely dependent on judges’ tender mercies.

I propose a two-prong constitutional solution. Firstly, to tackle the out-of-control problem of suo motto powers of Article 184 (3), which provision by the way doesn’t exist in any constitution of the world in such shape and form, I propose a constitutional amendment that would either repeal or substantially modify this overly broad, sweeping provision.

If we adopt the option to modify Art 184 (3) then the sweeping SC jurisdiction regarding enforcement of fundamental rights of high public importance should be curtailed to SC’s jurisdiction for enforcement of its orders to administrative agencies and for production of detained citizens (writs of mandamus and writs of habeas corpus).

We must remember that our SC doesn’t have carte blanche powers for enforcement of fundamental rights all across the land. That function belongs to the executive branch. Yes, SC does have a duty to enforce fundamental rights but only in the context or course of hearing of a legal case or dispute brought before it.

Secondly, to eliminate or greatly reduce the judicial activism of the more pernicious, second category of judicial activism, I suggest passing another corresponding constitutional amendment, which concededly would require some expert drafting and delicate balancing skills.

Such amendment would expressly bar the judiciary from: removing or disqualifying an elected head of government (remedies to remove a prime minister are available in the Parliament and among the electorate); interfering in executive functions; justifying or supporting   subversion or overthrow of the Constitution or the govt; adjudicating any matter involving political parties or political issues; exceeding duty or power of the judiciary as laid down in the constitution.

Some may argue that these provisions would be a bit harsh and overbearing on the judiciary. This might be true. But it’s also true that our nation has suffered much in its long history of judicial excesses. Sometimes unique, drastic situations call for unique, drastic measures.

The writer is a US-based attorney, ex Gen Counsel, author, analyst and speaker

Published in Daily Times, January 31^st 2019.