The Lords And Their Lordships
Judicial activism is a common slogan in most democratic nations around the globe. To uphold the dichotomy of power the judiciary must be bold, independent and free from all biases.
Be it the House of Lords in the United Kingdom – or the US Supreme Court in Roe v Wade determining a law in Texas that criminalized abortion, to be unconstitutional – judges around the globe do not shy away from activism.
Pakistan does not lag behind when it comes to the strengthening of the judiciary, as evidenced by ex-Chief Justice of Pakistan (CJP) Iftikhar Chaudhry’s efforts who seemed to have taken judicial activism quite seriously by sending the Chief Executive of the country packing home as he had refused to adhere to His Lordship’s edict. This was followed by suo moto action on the Arsalan Iftikhar case as well. Should Irfan Qadir (former Attorney General) have been surprised by seeing Justice Iftikhar Chaudhry presiding over his son’s case? Article IV of the Code of Conduct for the superior judiciary, which states that “a judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friend,” did not seem to matter much.
Justice Jawwad S Khawaja on the other hand refused to recuse himself from taking up cases against the Geo/Jang group despite the fact that Mir Shakilur Rehman was his relative. “I do not find any reasons whatsoever not to sit on the bench,” concluded Justice Khawaja while presiding over the Geo case. How convenient was that for him to decide what is wrong and what is right in general bias alleged against him? If a judge with conscience is capable of deciding for himself or herself, then why did the Supreme Court of India startle us when Justice C.S. Karnan of the Madras High Court stayed his very own transfer orders and even went on to demand a written statement from the Chief Justice of India. If the Pakistani adjudicator’s observations can be justified then why not Justice Karnan’s? Maybe his conscience seemed to have remained unperturbed as well.
The next thing we will hear is PM Sharif leading a commission probing his own family’s involvement in the Panama Leaks. As long as his conscience is stimulated what’s the harm?
With regard to Panama Leaks, judicial recusal can once again be seen to be practiced. Chief Justice Anwar Zaheer Jamali declined the federal government’s offer to form a commission, which is good in a sense because there were legal difficulties in its formation.
We do criticize the institution for not being open about its accountability process but thankfully this presumption was rebutted not long ago when names of senior military officials dismissed from duty were publicized. Starting from the top the General is hell bent to make an example out of not so honest officials – a highly commendable step. Supposedly, a leaf out of the khaki books would not do much harm.
Reverting back to the judiciary it reminds me of J.K Rowling’s Harry Potter series where instead of saying the name of Lord Voldemort it was easier to state ‘he who must not be named’. While coining an opinion regarding the judiciary, this phrase should be adhered to as a bulwark because you never know when the dark lord may rise up against you.
Nevertheless the honorable judges have a lot on their plates already. CJP Jamali while addressing the Azad Jammu and Kashmir Judicial conference, proclaimed that the major reasons for the pendency of around 60 per cent cases in superior courts of Pakistan included incompetence, indifference and negative thinking of official institutions, whereas 20 per cent cases were the outcome of dishonesty and egoism of litigants as well as vexatious litigations. Therefore, there is no irony in the fact that the Federal Minister for Railways is camouflaged behind a stay order granted by the apex court almost a year after he was disqualified by an election tribunal.
‘Justice delayed is justice denied’ - but who cares about the common man when the government gets granted relief in a matter of days? The signal free corridor case is one example.
Enhancing the original jurisdiction of the apex court is another move often made by the superior judiciary. By taking up new suo moto actions, other sub-judice matters remain unsettled, such as the relief granted to members of banned organizations, amongst others.
The 21st Amendment got a nod from the Supreme Court by all means. But is developing a parallel ad hoc system sufficient for the system to survive in the long run? I think not. The duration specified for the military courts is counting its days. Yet the judicial system seems unnerved about the matters due to which these courts came into being.
The fact that the superior judiciary of Pakistan has indeed contributed to the country’s progression cannot be ignored. Doors have indeed been opened for the public. Steps to be climbed have been constructed by those who seek justice. Speedy justice however still remains unheard of.
Accountability yet again is still almost unprecedented when it comes to the superior judiciary. The absence of a proper watchdog remains a predicament. Simultaneously, the National Accountability Bureau (NAB) is grilled every other day by the honorable lordships for not discharging its duties properly against public functionaries. Then why not enhance the original jurisdiction of NAB?
This reminds me what Ghalib would say:
“Umar Bhar Yahi Bhool Karta Raha Ghalib
Dhool Chehre Par Thi, Saaf Aaina Karta Raha.”
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