THE Supreme Court “Full Court” was held after a lapse of over 8 years. A lot of water has passed under the bridges in this interim period. A system of checks and balances is provided in the Constitution to ensure independence of judiciary which should have been reflected in their judgments and by remaining apolitical with a rigidity expected from them in letter and spirit of the Constitution. The 15-member Bench has restored, in letter and spirit, trichotomy of powers, enjoyed by Parliament, Executive and Judiciary, each working within confines of the Constitution. Suo motu jurisdiction should be exercised strictly in the public interest with extra caution.
Judges of superior judiciary are constitutional office holders, paid by taxpayers to deliver justice in accordance with laws and Constitution and under no circumstances should they be seen to be subservient to the executive, or any other institution of the state. They are not, in essence, government officers and must never be seen to be associated with any political party, and refrain from seeking favours, such as allotment of subsidized plots. Resistance to temptation and greed, or populism is essential for complete independence of judiciary. This policy of land and plot allotments is a legacy of British Colonial Raj, which needs to be shed in totality. The genuine needs of superior judiciary are catered for by creation of judicial residential colonies. Judges of superior judiciary are on a much higher pedestal than the civil or uniformed bureaucracy.
CJP Qazi Fayez Issa is like a breath of fresh air, who has rekindled hope and aspirations of the people of Pakistan that finally the Rule of Law and supremacy of the Constitution will prevail over whims of individuals. For Pakistan to survive and prosper, this country must adopt Jinnah’s vision of a modern democratic welfare state, whose citizens enjoy equal rights and opportunities irrespective of their caste, creed, sex or ethnicity. Pakistan’s superior judiciary has had a very checkered history, ever since 1955 Maulvi Tamizuddin judgment, based on Doctrine of Necessity, given by CJP Munir and his three brother judges of the Federal Court, with Justice Cornelius alone dissenting. Every judge of this bench is as much guilty as CJ Munir.
In fact, one of the judges was the ICS officer, deputed as Session Judge Lahore, who gave the judgment to acquire Jinnah Saheb’s House No 53 located in Lahore Cantonment in 1945 to appease the British Raj, who did not desire that MAJ spend more time in Lahore. This has eroded the credibility of our judiciary. Justice Cornelius was of the opinion that Necessity was a constitutional disaster and “an insult to the independence of Pakistan” paving the way for future supra constitutional interference which still haunts us. In the words of Barrister Hamid Khan “A timid and spineless judiciary leads to a constitutional disaster”. Even the Indian Independence Act of 1947 did not confer on GG Pakistan powers to dissolve the Assembly. Since 19th Century by convention, the British monarch can only dissolve parliament on advice of PM, or the cabinet, both accountable to the parliament.
Although the British monarch remains constitutional head of state, he/she no longer has the sole prerogative to dissolve parliament. Yet CJP Munir and his three brother judges went beyond the confines of laws in existence and regularized a gross illegality committed by a despotic GG. Pakistan at that time, was governed under the Government of India Act 1935 and technically remained a Dominion of UK, till such time the 1956 Constitution was adopted. The GG could under no circumstances, by any stretch of imagination enjoy a prerogative, which the British monarch did not enjoy. CJP Munir, a man reputed for his grasp on constitution and laws should have stood his ground and given the judgment, irrespective of the consequences. He and his three brother judges succumbed and failed to uphold dignity of the office they held and the oath they had taken.
Judicial activism and populist acts of a former CJP, whose eagerness to be on TV screens as headline news, became almost an obsession. Whilst the number of cases, pending decision, kept on piling up, a former CJP embarked on surprise raids and inspections of state funded organizations including hospitals etc. One such visit was on 17 November 2018 to Punjab Kidney-Liver Transplant Institute (PKLI), a hospital funded by Punjab Government to cater for rise in kidney and liver infections. This hospital offered subsidized treatment to patients who could not afford expensive treatment. In January 2019, CJP Saqib Nisar took Suo Motto notice which effectively required the Punjab Government to expel qualified doctors, specializing in kidney and liver transplant. As a consequence of this judicial activism, all such subsidized operations ceased. The public interest instead of being served, was impaired. This arbitrary decision was reversed only after departure of former CJP in March 2019. In the interim period hundreds of patients suffered, including a few who became terminal. It took years for PKLI to be restored and start delivering to thousands who could not afford the expensive treatment.
The manner in which suo motu powers have been assumed and excessively used by individuals in their role as CJP, without any recourse to any consultative process, has created many problems. This judicial activism has often compromised public interest, instead of protecting it, with disastrous consequences such as Reko Diq, PSM, etc., on national exchequer. Islam is based on the belief that Almighty SWT alone is Omnipotent, with unlimited powers, and no individual, including constitutional public office holders, elected individuals, and the CJP etc. or the paid civil or uniformed office holders should enjoy such powers.
The very basis for creation of Pakistan was the establishment of a “modern democratic welfare state”, and arbitrary judgments have eroded the very basics which motivated the political struggle for creation of Pakistan. The political process was destabilized and replaced with a dictatorial structure. In 1971 Pakistan suffered ignominy of defeat and surrender, because we had wavered away from Jinnah’s vision. Quaid-i-Azam believed that “Islam came in the world to establish democracy, peace and justice; to safeguard the rights of the oppressed. It brought to humanity the message of equality of the rich and the poor, of the high and the low”. Every institution of the state must start delivering their constitutional role and submit to the will of the people.
—The writer is contributing columnist, based in Lahore.
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