Judicial populism
All is not well in the hallowed halls of justice. First and foremost, Chief Justice of Pakistan (CJP) Saqib Nisar has admitted that he and the superior judiciary he leads have been unable to reform the judicial system. While this is an honest and welcome admission, the huge backlog of cases stuck up in the wheels of the system causes immense agony, incurred costs, loss of time and hope amongst millions of litigants, their lawyers, and even arguably the judges and other officers of the courts. The CJP’s critics would argue that contributing to this mountain of pending cases (two million by one account) and inability to reform procedures to quicken case disposal has been the diversion of the superior judiciary (especially the CJP) towards suo motu notices under Article 184(3), some of which have transgressed into the domain of the executive and legislature. No one doubts the good intentions of the CJP or the superior judiciary in attempting to address perceived fundamental rights’ transgressions through judicial activism. But this well-intentioned activism runs the risk of crossing the line into the other two pillars of the state’s constitutional structure, i.e. the executive and legislature. That is why jurisprudence generally, including ours in the past, has relied on temperance and restraint so as not to appear to be using the undoubted powers of the judiciary in a manner likely to arouse doubts and criticism, neither of which are helpful to the sustenance of the dignity and respect of the judiciary as an institution. Recent unprecedented examples of the fallout of the judiciary’s activism in recent years serve to illustrate this contention. The Karachi Bar Association has felt compelled to pass a strongly worded resolution of protest against the CJP’s alleged public disparagement of an additional district judge in Sindh, who reportedly resigned after the incident. The Pakistan Bar Council has in turn passed a resolution against suo motu actions. The Islamabad High Court’s (IHC’s) Justice Shauqat Aziz Siddiqui has protested in open court against the alleged derogatory remarks against him by the CJP for orders in a private school fees case, saying while the CJP has the powers to set aside, modify, uphold verdicts of judges, he has no right to humiliate them. He argues that all judges are equally respectable. It is not for this outburst or because his pending reference’s time had come, Justice Siddiqui has been summoned by the Supreme Judicial Council (SJC) on July 7, 2018 on a charge of misconduct. And speaking of the SJC, Siddiq-ul-Farooq of the PML-N, the party that feels most hard done by judicial activism, has filed a reference against the CJP for failing to uphold the trichotomy of powers amongst the judiciary, executive and legislature, and intervening and interfering in the domain of the latter two to the detriment of parliament’s powers and the executive’s governance. Reportedly, a sessions judge from Khyber Pakhtunkhwa and a former IHC judge have also set a controversial example by filing complaints against the CJP.
This situation is unprecedented in the history of our country. It may be read as the unintended consequences of judicial activism tending to cross the line into populism because of a sincere desire to fix the myriads of flaws that afflict our state and society. Unfortunately, as this experience shows, the judiciary is constrained in many ways from being able to correct all the wrongs of our system and cannot, in the process, entirely avoid the risk of the kind of backlash we are witnessing now. Any sensible well wisher of the country would rue such a turn of events. However the various cross-currents and eddies of what increasingly appears to resemble a clash of institutions and conflict within the judiciary itself pans out from here, the object lesson in the whole affair suggests a return to the time honoured principles of restraint and temperance on the part of the judiciary that have served it well in the past, and may be the only way to overcome the present ruction that is, justifiably or not, sullying the repute, dignity and respect of the judiciary as an institution.
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