The dichotomy between requirements of law and ideals of justice is old. The struggle between these two philosophies was exhibited in the trial of Catiline, a Roman aristocrat. Cicero, arguably the most famous lawyer of Roman era, uncovered a plot by Catiline that called for assassination of several elected officials and the burning of the city itself. Catiline was arrested and Cicero built up a case for his execution without a trial. Cicero, motivated by his previous enmity with Catiline, argued vociferously that Catiline has committed a crime against Rome and it was the requirement of justice that he should be executed as soon as possible. Ironically, Julius Caesar argued that Catiline had the right to a fair trial and he should not be condemned without it.

Roman Senate was about to agree with Caesar when Marcus Porcius Cato, known as Cato the Younger, rose to speak. He made a brilliant speech and was able to swing the opinion of the Senate in Cicero’s favour. Catiline and other conspirators were executed without a trial in the name of swift justice.

Article 184 (3) of the Constitution of Pakistan, gives Supreme Court a very broad power, generally known as suo motu power, to intervene in the matters of public importance with reference to enforcement of fundamental rights. The wording of the aforementioned Article gives unbridled power to Supreme Court with almost no limitation or exception.

Through most of the judicial history of Pakistan, the power of suo motu was used in rarest of the circumstances. Two famous examples where this power was used were that of Darshan Masih case and Shehla Zia case. In Darshan Masih case, Supreme Court took cognizance of the telegram received by it and need for legislation defining the expression “forced labour” was pointed out. The Bonded Labour System (Abolition) Act, 1992 was enacted in the wake of this decision. Similarly, in Shehla Zia case, the right to life was liberally interpreted thus expanding the scope of this fundamental right of utmost importance.

However, after the lawyers’ movement, judicial activism became more egregious and audacious. The balance of trichotomy of powers was heavily disturbed and judiciary began to intervene within the sphere of Executive. Political leadership was given no breathing space and challenged and humiliated on all turfs. Even two elected prime ministers – PPP’s Yousaf Raza Gillani and PML-N’s Nawaz Sharif – were disqualified by the Supreme Court while three dozen MNAs were also disqualified on the basis of fake degrees, dual nationalities and non-disclosure of assets. The judges began to assume the role of the head of panchayat and making a ‘just’ decision seemed to be their only concern without caring much about the requirements and niceties of law.

This overly interventionist and ambitious behaviour had two adverse outcomes: judiciary lost focus of its main job and the Executive matters also suffered badly. Almost two-third prisoners in Pakistan are under trial and waiting for the disposal of their cases. Matters are worse in civil courts. Court backlog in Pakistan judiciary is estimated at around 1.9 million cases along with 43,000 cases pending before the apex court. Civil cases take many generations to conclude as observed a former Chief Justice of Pakistan, Justice Jawad S. Khawaja. According to the World Justice Project Rule of Law Index, Pakistan stands at 120th place among the 128 countries surveyed. In South Asia, Pakistan stands at 5th place among the six countries showing a poor public perception of Rule of Law in the country.

Executive matters have also suffered for the worst. Ambitious projects like building of dams have been undertaken only to be left in the middle of nowhere. Recently, Justice Gulzar Ahmed’s (CJP) court took his first notice under the suo motu jurisdiction regarding COVID-19 and tried to micro manage a developing situation. A decree was issued without consulting even the health experts. This is hugely problematic as it transfers power from the elected public representatives to the unelected bench who cannot be held accountable by the people for their bad decisions.

All of this calls for reforms in order to limit the reach of Article 184 (3) and curtailment of judicial activism. Firstly, we need to tackle the suo motu powers of Article 184 (3) as this provision does not exist in any constitution in the world in such shape and form. A constitutional amendment should repeal or substantially modify the provision. If we opt to modify 184 (3) then the SC’s jurisdiction regarding the enforcement of fundamental rights of high public importance should be curtailed to the SC’s jurisdiction for the enforcement of its orders to administrative agencies and to the production of detained citizens (writs of mandamus and writs of habeas corpus).

Secondly, to reduce judicial activism the superior judiciary should be barred from removing or disqualifying an elected head of government since this can be done in parliament and by the electorate. These provisions may seem harsh and overbearing, but our nation has suffered much because of judicial excesses and it is high time to amend the situation before it deteriorates further.

Usman Ghani - Cloumnist