Pakistan chief justice sparks debate over ‘judicial activism’

Pakistan chief justice Saqib Nisar. (Photo courtesy: social media)

ISLAMABAD: The Pakistani chief justice’s statement on Saturday about why he is intervening in the executive domain has triggered a debate about whether "judicial activism" is a step toward providing speedy justice in the country.
Saqib Nisar said he did not intend to intervene in the work of the executive, but “was compelled to do so due to the poor state of affairs.”
Sen. Mushahidullah Khan of the ruling Pakistan Muslim League-Nawaz (PML-N) said the Supreme Court should focus on clearing its backlog of more than 3 million cases instead of interfering in the executive domain by taking suo motu notices on petty issues.
“The Supreme Court is custodian of the constitution, which doesn’t allow it to try to address issues pertaining to governance in the center and the provinces,” he told Arab News.
The apex court should focus on dispensing timely justice to the people, as this will increase its integrity and respect within society, he added.
“We don’t want to undermine the authority of any institution, including the Supreme Court, but we can’t allow it to usurp executive powers under the garb of judicial activism,” he said.
Khan acknowledged flaws in governance, but said Pakistan’s judiciary is full of “weaknesses.”
He added: “Instead of trying to correct each other, every institution should perform within the parameters of the constitution for the betterment of the country.”
He vowed to introduce judicial reforms to address all these issues if his party retains power following the upcoming general elections.
Habibullah Khan, a senior advocate of the Supreme Court, expressed support for its intervention in the work of the executive, saying: “Politicians and Parliament have failed to respond to problems of the common man.”
If all institutions were working to address issues faced by the public, the judiciary would not have been burdened with tens of thousands of cases, he added.
“The Supreme Court’s interference in the work of the executive should be a wakeup call for elected representatives of the people,” he said. “If the executive does not do its job, then other institutions will try to fill the vacuum.”
The constitution also allows the court to take notice of matters that come directly under the ambit of fundamental human rights, Habibullah added.
“Under the constitution, the superior courts can also interfere in public-interest litigation for the provision of speedy justice,” he said.
Rasul Bakhsh Rais, a well-known political analyst, said superior courts worldwide take notice of public issues when governments fail to address them.
“The Supreme Court is not doing anything unusual,” he said. “It is the duty of the court to protect the fundamental rights of the people, and direct the executive to do what is necessary.”
A state cannot survive if both Parliament and the apex court fail to address genuine public grievances, Rais said.
“There should not be a power struggle between the institutions. Rather, they should cooperate with each other to improve the state of affairs,” he added.
Tahir Malik, a public university professor and political analyst, said the government should strengthen institutions, including Parliament, by introducing reforms, which is the only way to address complaints regarding judicial activism.
“Mere political statements and rhetoric for public consumption regarding judicial overreach are going to make no difference,” he said.
“The federal and provincial governments need to improve their governance to counter interference in their work by other institutions.”