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No bar on activist bench

Judicial activism that began even before the Lawyers’ Movement continues to hold sway

No bar on activist bench

The superior judiciary took some unprecedented steps in 2017 that evoked mixed responses from different quarters. On occasions, it exercised its authority over the executive and even directly assumed its role. Apart from that, there were certain orders and directions issued by the courts during the hearing of cases like the Panama one that were taken by the defendants as attempts by the judiciary to get the desired results. This assertion can be questioned but one thing is clear. The SCP bench hearing the Panama case seemed quite charged and extraordinarily resolute about deciding the case.

The Chief Justice of Pakistan, Justice Saqib Nisar, also intervened in matters that fall in the domain of bureaucracy and political leadership. His statement issued towards the end of the year that judiciary has to intervene when government fails to fulfill its constitutional duties explains this phenomenon well.

In pursuance of this policy, the CJP took notice of the non-availability of clean drinking water in Sindh and asked the chief minister of Sindh and the former mayor of Karachi to appear before the bench to explain the situation. Both were questioned about their failure to provide clean water to the masses and were directed to do the needful.

The Panama case was the most high-profile case of the year, where the judiciary put strong checks over the executive and finally declared the prime minister ineligible to hold office.

Similar directions were also issued to the provincial leadership in Punjab, which in the opinion of the court, had failed to provide clean water to the masses and to cleanse the rivers of toxic substances. Furthermore, the CJP visited the Mayo Hospital in Lahore and expressed his dissatisfaction over the poor quality of medical services available to the people.

Though these gestures invited appreciation from disgruntled citizens, the question about the separation of powers among the three pillars of the state — legislature, judiciary and executive — was brought to the fore. Critics have strongly expressed reservation on this activism, making the CJP come up with a justification.

His declaration that the superior judiciary acts independently and does not take pressure from anybody while hearing and deciding cases was yet another attempt to ward off public criticism against the judiciary.

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There is no doubt that the Panama case was the most high-profile case of the year, where the judiciary put strong checks over the executive and finally declared the prime minister ineligible to hold office. The opposition declared this a big dent in the power of what they called corrupt politicians. However, legal experts are divided on whether the SCP could disqualify the prime minister as it was not a court trial.

Senior lawyer, Abid Hassan Minto expresses dissatisfaction over Nawaz Sharif’s disqualification on the grounds of Article 62 (being Saadiq or Ameen) rather than on corruption or money laundering. He believes the SCP has set a wrong precedence. He says, “It is problematic because most of the members in the federal parliament and provincial assemblies could be disqualified under the same grounds, which are quite vague.” He says that the situation in the case of Jahangir Tareen’s disqualification for life is the same.

Minto terms for-life disqualification of Sharif and Tareen unconstitutional on the ground that the constitution says an individual cannot be disqualified for life till a legal provision to do so is present. Another question, he says, is where would they challenge this disqualification for life awarded by the country’s highest court?

The formation of an investigative team to further look into the matter after the April 2017 split decision in Panama case also raised many eyebrows. The concern was about the inclusion of representatives of two powerful intelligence agencies by the court. There was a perception that the SCP had allowed the military to directly look into the proceedings.

Lawyer and constitutional expert, Babar Sattar, thinks the Panama ruling is not as per Article 10-A, added through the 18th Amendment that allows citizens constitutional right to fair trial. In his newspaper writings, he objects to the monitoring of NAB investigations by an SCP judge and questions whether a decision by the authority can be challenged in a high court in such a scenario. His point is how can an appeal be accepted by a high court if the investigation is held directly under the supervision of an SCP judge?

While there are questions about the judiciary trespassing its limits, certain segments of the society see it as a saviour of the system that they term as totally flawed, offering nothing to the masses. The more knowledgeable among them refer to Articles 199 and 184 of the Constitution, saying these allow the courts to step in for the protection of fundamental rights.

The year also saw the lawyer community showing its muscle on different occasions. In April, several of the country’s top lawyers’ associations, including the Pakistan Bar Council (PBC), announced a countrywide strike asking Nawaz Sharif to resign after the announcement of the verdict in Panama case.

In August, the lawyers announced countrywide strike against the non-bailable arrest warrant for the Lahore High Court (LHC) Bar Association Multan President, Sher Zaman, in contempt of court case by the Chief Justice Lahore High Court, Syed Mansoor Ali Shah.

Later in September, it was Khyber Pakhtunkhwa where the lawyers boycotted the courts and staged protest demonstrations in Peshawar and several other districts against the killing of Rohingya Muslims in Myanmar. Two months later, they observed a complete strike on November 27 against the construction of a park on the premises of Mardan district courts.

During the last week of November, lawyers came out on the streets to express solidarity with those protesting in Faizabad against the amendment in parliamentarians’ oath. Members of the Lahore Bar Association also held a strike in the lower courts and took out a rally at The Mall to condemn the operation against the Faizabad protestors, vowing to fully counter any attempt against Khatam-e-Nabuwwat.

Shahzada Irfan Ahmed

shahzada irfan
The author is a staff reporter and can be reached at [email protected]

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