Judiciary of Pakistan, judicial Activism and suo moto action, Cheat Sheet of Judicial Systems

Download Judiciary of Pakistan, judicial Activism and suo moto action and more Cheat Sheet Judicial Systems in PDF only on Docsity! Judiciary Before we explore judicial activism in Pakistan, we must know that the bedrock of any thriving democracy is in the doctrine of separation of powers between the three main organs of the state: the executive, the legislative, and the judiciary. As per the renowned French philosopher Montesquieu, the intermingling of the roles of state entities poses a risk to the emancipation of the state as it could “expose the liberty of the citizens to arbitrary control” Judiciary: The revolutionary British Jurist, Lord Denning, eloquently encapsulated the role of the judiciary in the following terms, “to interpret the law and mould it to meet the needs of changing time… (while remaining) outside the sphere of politics” (Lord Denning, 1963). Thus, Judicial prerogative: is defined as being able to give out justice without assuming the role of a law-making body and staying apolitical in the treatment of parties who approach the court for judicial remedy. The Unrestrained Judicial Activism in Pakistan However, this role has been offset in recent years by the emergence of a new phenomenon, referred to as “judicial activism” the widely accepted definition, as enunciated by George W Bush, describes it as the proclivity of the judges “to legislate from the bench” Therefore, judicial activism can be pronounced as the usurpation of the legislative and executive functions by the judiciary with the motive of expanding the scope of its own power. In Pakistan, judicial activism finds its genesis in the Lawyer’s Movement of 2007, which started with the goal of restoring the then Chief Justice of Pakistan (CJP), Iftikhar Chaudhry, who had been dismissed by General Musharaff’s dictatorial regime for refusing to legitimize the subversion of the Constitution. Thus, the entrance of jurists into the domain of politics was initially lauded as being a symbol of dissent against an overtly authoritarian regime. However, things took a turn for the worse when following his restoration, CJP Iftikhar Chaudhry, with a single stroke of his pen, dismissed over 110 judges who had not tendered their resignation after his dismissal as the CJP. This move showed Pakistan that judicial activism did not only have the tendency to bulldoze any dissent which arose in their ranks but they were also willing to bypass the democratic process to pursue their underlying political ambitions. The correct process to dismiss a judge under Article 209 of the Constitution of Pakistan, 1973 is to file a report before the Supreme Judicial Council, which then decides whether there is sufficient evidence of misconduct or lack of mental capacity for dismissal. Although proponents of judicial activism argue that it merely seeks to support the rule of law in the country, recent developments in Pakistan illustrate that all these discussions for constitutionalism are merely a guise for the judiciary to broaden the extent of its jurisdiction, ramp up the scale of its popularity, and lend support to its political allies while settling personal scores against those who have “wronged” it in the past. However, judicial fairness can still be achieved if the judiciary diverts its suo-motu powers from politically charged cases to those which pose actual socio-legal challenges. To understand the expansion of the judicial prerogative over the recent years, it is necessary to first understand the Suo motu power exercised by the country’s apex court, the Supreme Court of Pakistan (SC). The suo motu power, often defined as public interest litigation, deals with the original jurisdiction of the Supreme Court to hear cases on its own accord under Article 184 (3) of the Constitution. The two basics for the invocation of Article 184 (3), as pronounced in the Constitution, are that the petition filed (i) must relate to a matter of public importance (ii) and deal with a breach of fundamental rights that have been articulated in the Constitution. Justice Fazal Karim (2019, p. 228), a retired judge of the Supreme Court and a constitutional expert, claims that the use of these powers is not only “wholly inconsistent” with the doctrine of separation of powers but also a “subversion of the constitutional mandate”. However, in the country’s 71-year history, the judiciary had not always been at the centre of such extra- constitutionalist behavioural allegations. To understand the nature of these accusations, one cannot simply overlook the suo-motu “legacy” left by the former CJP, Iftikhar Chaudhry. During his six-year tenure as the CJP, Chaudhry did not only set the tone for “assertive judicial authority” but also began taking suo motu notice on matters where it was unheard of the Supreme Court to meddle (Manzar, 2018). At the pinnacle of Chaudhry’s reign, the apex court independently began dealing with issues as trivial as determining whether the “government was allowed to set prices of street food” to admonishing cellular service providers for imposing taxation on mobile services (Javed, 2021). These judicial acrobatics were further purported by CJP Saqib Nisar, who at the helm of the SC, decided that it lay within the prerogative of the judiciary to single-handedly deal with the water scarcity malaise encompassing Pakistan. Notwithstanding his pre-CJP convictions, Nisar’s activist proclivities as the CJP placed him at odds with the politicians of the country numerous times. For instance, when he decided to take suo motu notice on the dual nationalities held by politicians who had been recently elected to the Senate, public protests were raised against the political motives underlying this move Unfortunately, both Nisar and his predecessor failed to realise that their activist acrobatics were rendering more harm than good to the country. Not only did these interferences undermine the role of the Parliament and elected representatives of the country but they also placed the judiciary under backlash for interfering within the political amphitheatre Defiling Judicial Impartiality In Pakistan’s case, the judiciary’s penchant for populism and its proclivity to surrender to the whims of the masses give credence to these allegations. Justice Jawwad S Khwaja, former CJP, once defined judges of the Supreme Court as “the representatives of the will of the people” (Kureshi, 2019). Such notions are damaging, as they do not only undermine the political mandate of the actual representative of the will of the people (i.e., parliamentarians) but they also make the judiciary more prone towards passing pro-majoritarian decisions. A prime example of this can be seen in the Islamabad High Court’s (IHC) judgement in the Allah Wasaya case (PLD 2019 ISB 62) which pertained to the profession of religious identity by members of the Ahmadi faith. The court, in accordance with the views upheld by populist