One Flew Over The Cuckoo’s Nest
The recent decision of the Judicial Commission to elevate Justice Syed Mansoor Ali Shah to the Supreme Court reminds me of a 1962 novel, One Flew Over the Cuckoo’s Nest. The novel revolves around the story of a rebellion transpiring against the functionaries running the affairs of a mental institution.
The narrative serves as not only a study of the institutional processes and the human mind but also a critique of behaviourism and celebration of humanistic principles. The cuckoo’s nest is a metaphor for a mental hospital and, at present, it would not be absurd if the same metaphor is referred to our society. If somebody as capable as Justice Syed Mansoor Ali Shah makes an effort to reform the judiciary through sheer hard work and brilliance, it is resisted and eventually, the task remains unfulfilled.
The question arises that if the honourable Chief Justice was trying to revamp the system, why was there a need to elevate him to the Supreme Court when we all know that his efforts of bringing reforms in the judiciary would not be completed and would eventually come to a halt?
I quite often hear from professional lawyers that it was during his tenure from 2009 to 2018 that jurisprudence developed in constitutional matters, including taxation, environment, minority’s rights and rights of differently abled persons. He is the only judge in Lahore High Court in recent years who showed courage to take actions against illegal appointments made by the executive.
It was due to his judgment reported as PLD 2013 Lahore 343 that the scope of the writ of quo warranto was expanded and finally a principle was delineated that any person from the society, whether actually aggrieved or not, could challenge the illegal appointment of a public office holder (including a civil servant) made by the executive.
In this case, the appointment of the Chair of Pakistan Telecommunications Authority (PTA) was challenged which was finally declared illegal. Justice Shah further elaborated in the judgment that if a civil servant wanted to challenge his or her own posting or transfer, then the appropriate forum would be the Service Tribunal, but if an ordinary citizen challenged the illegal appointment of a civil servant or public office holder, then the appropriate forum would be the Lahore High Court under a writ of quo warranto. It was due to his judicial activist approach that public functionaries recognized a fiduciary duty to the public. Now any public-spirited individual can challenge the illegal appointment, as it is a matter of enforcement of merit, transparency and good governance.
Similarly, in another landmark case pertaining to the involvement of public exchequer’s money, Justice Shah declared the appointment of Ms Maryam Nawaz Sharif as Chair of the Youth Loan Scheme illegal and in violation of the principles of transparency. The judgment is reported in a law journal as PLC C. S 2016 Lahore 269.
It was again due to the intervention of Justice Shah that fundamental rights of persons with disabilities were enforced. In a reported case PLD 2017 Lahore 1, the honourable Chief Justice declared a recruitment policy ultra vires and unconstitutional which barred persons with disabilities to apply to the posts of educators.
Another significant measure was the establishment of green benches in the Lahore High Court to take cognisance of environmental degradation. Recently, he took notice of the Environment Department’s and Secretary Environment’s negligence in the enforcement of environmental laws to curb the deleterious effects of smog across the province of Punjab. The judgment is reported as PLD 2018 Lahore 1 in which the honourable Chief Justice directly held the Punjab government liable for not taking appropriate steps against the industrialists and also reprimanded the Health Department for not declaring a public health emergency.
It was during his tenure that rights of the minorities were given importance. Since 1947, a law namely Christian Divorce Act 1869 was in effect, which entitled a Christian man to divorce his wife only on the grounds of adultery. Unfortunately, the Parliamentarians of our country did not do enough to reform this law and it was due to the indulgence of Justice Shah in the judgment reported as PLD 2017 Lahore 610 in which Section 7 of Christian Divorce Act 1869 was repealed. Now both Christian men and women can part their ways based on just and reasonable grounds or with mutual consent rather than imputing the charge of adultery and having to make undignified allegations.
If somebody like Justice Shah exercises judicial review powers and takes measure to bring reforms, such change gets resisted and the people involved are compelled to leave. Eventually, we end up living in a cuckoo’s nest.
An earlier version of this article appeared in Daily Times. Republished here with permission.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.
