Daily Times

The judicial activism or restraint that the Supreme Court of Pakistan shows is not dependent on any principle but rather on who the Chief Justice of Pakistan is. Pakistan has seen many twists and turns in the approach of the Apex Court, with Iftikhar Muhammad Chaudhry leading the Court towards blatant unconstitutionalism and interference in the affairs of other organs of the state, to Tassaduq Hussain Jillani leading with a soft approach but defending individual rights; from Saqib Nisar’s attempt at building a dam, or rather raising awareness for it, to Asif Saeed Khosa, who quietly delivered some of the best judgments produced by the Pakistani Supreme Court (the definition of terrorism having been set is one striking example). The current Chief Justice, Justice Gulzar Ahmad, clearly has more resonance with Iftikhar Chaudhry and Saqib Nisar than with their immediate successors.

In the little over a month of his stint as the Chief Justice, he has summoned the Railways Minister, criticising his performance in open court and suggesting a resignation; met the delegation of Federal Ombudsmen and ordered them to pay attention to the affairs of the Karachi Port Trust and Civil Aviation Authority; ordered the federation and provincial governments to prepare a comprehensive development plan for Karachi and held both the governments responsible for failing to resolve issues of the people of Karachi. He has shown his inclination to issue a contempt of court notice to the Chief Minister of Sindh and Mayor of Karachi if his orders were not implemented; ordered to make more parks in Karachi and to redraw the master plan for Karachi; questioned why a flyover was allowed to be constructed near the Quaid’s mausoleum; ordered the revival of the Karachi Circular Railway within a week and even inquired where the buses of Karachi have been lost as he has not seen them on the roads.

The chief justice has directed the Sindh government to mark zebra crossings at the roads for pedestrians; taken notice of the dilapidated condition of roads in industrial areas of the city and observed that it was the responsibility of the government to give infrastructure to industrial areas to promote trade activities. Further, he said that NAB should be fined billions of rupees and this penalty should be collected from NAB employees as the government would not give a single rupee. He has also expressed resentment at the officials of the Civil Aviation Authority over the non-provision of proper facilities in a suo motu case about the inconvenience to passengers in baggage handling and delayed flights; seeking the recommendations about the removal of encroachments, resettlement of Katchi Abadis from the general public.

A glance at this approach would make it clear to the reader that many of these matters do not rest within the judicial review powers of the courts. The US Supreme Court invented the “doctrine of political question” in the authoritative case of Baker v Carr. The doctrine stated that certain issues involving constitutional grounds should not be judicially reviewed by the courts even if they have jurisdiction. Rather, they should be left to the politically accountable branches of government, the legislature and the executive. In other words, the political question doctrine rests on the reviewability of subject matters deemed inappropriate for judicial reviews. This view has been upheld by the Pakistani Supreme Court in the seminal cases of Mahmood Khan Achakai and Manzoor Ahmad Watoo, where it was held that if the question before a court was political in nature, it would only decide on the merits of the case if the action could be shown to be violative of the Constitution.

The Supreme Court will never be remembered for redesigning Karachi, but for providing effective justice to the litigants before the Supreme Court

There are six justifications advanced for the court to invoke the doctrine of political question and refuse to decide on cases where the subject matter is inappropriate. The first reason relates to the complexity of the issues and its intractability to principled resolution. Whether a flyover should be built near Quaid’s mausoleum or not, for example, will depend on the complex issues of urban traffic management and there cannot be a right or wrong answer.

The second reason is the sheer momentum, which can unbalance judicial judgments. For example, the paperwork in relation to how the railways could be made a better institution would be endless. Definitely, the Supreme Court, seized of the most important constitutional matters, cannot give so much of its precious time to this exercise.

The third reason is the anxiety, not that the judicial decisions will be ignored but much rather that it cannot be ignored. A decision taken politically can be challenged through many different channels, legislative and judicial, but a pronouncement of the Supreme Court, whether right or wrong, would be final, without any redress.

The fourth reason is that the political question doctrine allocates decisions to the branches of government, which have superior expertise in particular areas, such as the foreign policy and what facilities to provide at airports.

The court’s inner vulnerability of being a non-representative institution is also a factor to consider. The political question doctrine, therefore, is justified on the separation of powers ground.

In certain cases, an effective remedy would mean judicial control and supervision over the executive’s day-to-day activities. The redrawing of the master plan of Karachi, for example, cannot be allowed as it is the job of political governments and not of the courts.

Over forty thousand cases are currently pending resolution before the Supreme Court. This is a record-breaking high and the real challenge before the Supreme Court. The Supreme Court will never be remembered for redesigning Karachi, but for providing effective justice to the litigants before the Supreme Court. The Supreme Court can only win the battle against this pendency of cases by taking into account the political question doctrine and paying attention to the cases that have been pending before it for long; effectively ditching resolution of cases that do not fall within the judiciary’s domain. Justice Asif Saeed Khosa will always be remembered in history books as the 25 years’ backlog of criminal appeals pending before the Supreme Court was wiped out due to his efforts. It is, indeed, a hard act to follow.

The writer is a barrister, who has an interest in Pakistani current affairs, economy, constitutional developments, foreign policy and international law