Daily Times

South Asia in general and
Pakistan in particular has experienced substantial judicial activism. Pakistan’s Supreme Court has played a significant role in raising critical issues and drawing attention towards matters that were being ignored for a while. However, a critical question that must be asked is that how far has such activism brought peace of mind and established systems in these countries particularly Pakistan.

It is being discussed on electronic, print and social media that sometimes the executive and the judiciary both cross their limits in different ways. Look at the judiciary; it is contributing in many matters even those pertaining to policymaking. While this may present a temporary relief to people, it does not fill the gap of institution building and strengthening. In fact, excessive judicial intervention creates problems of crowding out other institutions that must do the job that is today being done by the judiciary. The fact is that if institutions intrude in each other’s spheres it creates more problems than it solves. The judiciary’s job is to decide the cases and to provide speedy justice to the people, not to interfere in policy issues. It does not mean that the rights of the people of Pakistan are dependent solely on the interpretation of Pakistan’s Supreme Court as was said by Stanley Mosk, one of the most famous judges of the United States’ Supreme Court.

People should not mix judicial activism and judicial restraint; both should be seen separately. Judicial restraint does not mean abolishing judicial activism; rather, it means to strengthen the system.

The admirers of active judiciary should not forget Stanley Mosk, one of the most liberal Judges of the US Supreme Court who gave many unexpected rulings. Mosk had also developed the constitutional doctrine of ‘independent state grounds’. It was one of the big contributions to jurisprudence. “This is the concept that individual rights are not dependent solely on interpretation of the US Constitution by the US Supreme Court and other federal courts, but also can be found in state constitutions, which often provide greater protection for individuals.”

All are equal in eye of constitution, judges are in courts to uphold the rule of law, they and their judgments have no immunity from criticism. If president, prime minister, army and other people and institutions can be criticised, why cannot the judges be? They are also human beings. Last year in November, commenting on Pakistan’s judges, Brad Adams, the Asia director at Human Rights Watch said, “Judges sworn to uphold the rule of law should not be using their broad contempt powers to muzzle criticism by the media. Judges have no special immunity from criticism. Unless they want to be seen as instruments of coercion and censorship, they should immediately revoke these curbs on free expression.”

The Human Rights Watch said, “Pakistani courts have openly issued a spate of orders that seek to limit the media’s free expression rights. On October 9, Judge Shaukat Aziz Siddiqui of the Islamabad High Court issued a restraining order to the Pakistan Electronic Media Regulatory Authority (PEMRA) to stop airing criticism of the judiciary on television. The court sought to justify its order by asserting that the media ban was “to ensure that no programme containing un-commendable, malicious, and wicked material is telecast by any of the channels in which person of the honourable chief justice of Pakistan and other honourable judges of the superior court are criticised, ridiculed, and defamed.” It also gave reference of court’s stay order of November 20, 2012, the LHC’s stay order of October 16 and LHC’s extension of stay on November 7 against airing of television programmes that criticise the conduct of the Supreme Court Chief Justice Iftikhar Muhamamd Chaudhry.

At the same time, executive should implement court decisions in true spirit. Executive cannot and must not be allowed to function in an unbridled manner as is practised in every civilised society. There should be a concept of separation of powers; institutions should be strengthened to the extent that they work as per law and constitution, not for the sake of their personal interests.

Nations across the globe have ideal models of governance and legal system, but unfortunately, we in Pakistan are busy in the struggle of getting power for personal interests and for comfortable manipulations.

None of the state organs should intervene in other’s matters; rather, each should strengthen itself and make it an independent organ as per constitution. Our parliamentarians do not try to bring constitutional reforms to strengthen state organs; perhaps they fear that they will not come into power again. Every major political party behaves the same way. We should learn from the example of other countries; when the Turkish Prime Minister Recep Tayyip Erdogan had come into power in his first tenure, he brought reforms and was again elected by the people of Turkey. Another recent example is of the Egyptian President Muhamamd Mursi, who tried to bring constitutional reforms. The Egyptian judiciary tried to stop him from doing so with the backing of the opposition party, but he went for a referendum and the people of Egypt gave him the right to bring reforms. One is unable to understand what stops our parliamentarians to bring constitutional reforms to strengthen institutions.

The writer is working as Media and Public Relations Officer with NAB.
He tweets @irfanchaudhri and can be
reached at irfanchaudhri@gmail.com

Note: The views presented in the article are the writer’s own and do not represent his organisation