When every citizen of Pakistan is, undoubtedly, not happy with the governance of the rulers, it is not surprising that the Chief Justice of the Supreme Court, as a citizen of the country, feels aggrieved with the dismal performance of the state institutions. At the same time, the disapproval by the Chief Justice of performance by the state institutions makes one wonder whether it is right for the Chief Justice to look into matters that fall under the domain of the executive and the legislature? While it gives hope to the citizens that some corrective measures might ensue from the apex Court, however, our past experiences with unstructured judicial activism warns us otherwise.

The question needs to be probed from a theoretical lens, at the risk of explanation sounding clichéd. Almost all parliamentary democracies across the globe are premised on the principle of separation of powers, first proposed by Montesquieu in his magisterial work “The Spirits of Law.” M.J.C Vile in his magnum opus ‘Constitutionalism and the Separation of Powers’ explains the need for demarcating boundaries between state institutions in such words:

“The great theme of the advocates of constitutionalism has been the frank acknowledgment of the role of government in society, linked with the determination to bring that government under control and to place limits on the exercise of its power. To provide a solution to this dilemma, the doctrine of the separation of powers has, in modern times, been the most significant, both intellectually and in terms of its influence upon institutional structures. But state functioning strictly on Montesquieu’s idea of separation of powers will turn state organs into absolutes.”

Therefore, the American Founding fathers felt, rightly so, the need to introduce the principle of checks and balances into their political system, later on, adopted by almost every other country. The concept of ‘checks and balances’ in any political system while maintaining a strict separation of powers between the state organs, also allows for them to check against the excess of jurisdiction committed by any member of the trichotomy of power. Judiciary as the guardian of the text and spirit of the Constitution has the uniquely inherent powers to decide the legality of any law or executive action on the touchstone of the constitution.

Contrary to the actual aim of the principle mentioned above, which is to enable state machinery to make administration workable, it seems, however, that the said principle is hindering its very desired goals in Pakistan. The activism of the superior judiciary may accelerate the process of declining parliament, which is nowadays a global pattern, thanks to populist leaders elected in different countries.

The apex Court in Pakistan invokes Suo-Motu action –peculiar power enshrined in the Constitutions of Pakistan and India– to question the performance and actions of other state institutions. The purpose of the article is not to challenge the power of the higher judiciary to invoke Suo-Motu. It, for sure, works as a tool in the hands of the apex court to keep a check on the rest of the state organs. But then there comes the functioning of these institutions. There are numerous reasons for why executive body fails to perform its duties efficiently. Merely, Suo-Motu action has never solved any administrative failure. What executive or public organisations need is a culture of good governance, instead of issuance of Suo-Motu notices.

Judiciary, while, questioning or even directing how the executive should perform its functions is nothing but a violation of the principles of separation of power and check and balance. This leads to judicial activism and more often than not brings government operations to a stall and sometimes judicialization of politics.

Moreover, not to disrespect the higher judiciary, but to state a bitter reality, the legal system of Pakistan is facing multiple problems like all other organs. Out-dated procedures of prosecution, loopholes in the criminal justice system, and delay in justice are few of the many issues to mention. We need a proactive judiciary but one who can correct the wrongs in the courtrooms. We crave for a judiciary that can deliver right and speedy justice to those who are wronged. We want a judiciary that can solve the backlogging of cases pending in courts across the country. The latest statistics on pending cases reveals a backlogging of more than 1.8 million cases. The numbers speak for themselves. The apex court can lead by example if it diverts its attention to the problems people face in courts on a routine basis.

The need is to draw a line between the cases where the court should invoke the power of Suo-Motu and those where it should not. To quote one or two examples from the recent past are not to challenge the intentions of the judges of the higher judiciary, but an attempt to suggest that those issues were not the concern of the judiciary. First was the visit of the Chief Justice to Mayo Hospital a few months back, and the latest one was a sudden recall of Hussain Haqqani’s case while the Supreme Court heard a petition on the overseas Pakistanis’ right to vote.

In a country where people’s fundamental rights are violated on a regular basis, and where majority maintains its criminal silence on the gross injustices, the apex Court needs to break the silence. If the highest Court in the country wants to re-open one case that is of utmost importance, it is that of missing persons. If it succeeds in delivering justice to the families of those missing, it will restore people’s faith in the judiciary and democracy.

Lastly, it is safe to say that despite the excessive Suo-Motu notices taken by the apex Court, it is going nowhere. However, invoking Suo-Motu jurisdiction on every other matter will lead not only to chaos but also to a stalemate in the administration of the government’s affairs.

 

The writer holds a degree in legal studies.

fahad.mehsood@gmail.com