Chief Justice of Pakistan Mian Saqib Nisar has expressed, on a number of occasions, his strong intention to substantially reform the country’s judicial system. Therefore, many were hoping that he would focus on introducing some fundamental reforms in the justice system after concluding the much-hyped Panamagate case. However, after the conclusion of this important case, the disqualification cases against PTI Chairman Imran Khan and Jahangir Tareen just took center stage. At the same time, the apex court also pro-actively started exercising its extraordinary Suo Motu jurisdiction by taking cognizance of diverse cases involving a number of federal and provincial public departments through the country. Now, day by day, the frequency of the Suo Motu actions taken by the apex court is just on the rise. There is also an instance where the CJP took as many as six Suo Motu notices in a single day. Moreover, now the apex court has also initiated Suo Motu contempt proceedings to punish the ‘political contemnors’. So, as usual, the ‘judicial activism’ seems to have eclipsed the much-needed Judicial reforms in the country.

Comprising two parallel hierarchies of courts at the federal and state levels, there is mostly a Dual Court System in a country with Federal Form of Government, as in the United States and Australia. Federal courts hear cases involving the violations of federal laws while state court take cognizance of cases involving the violations of the state laws. Generally, the federal and state courts operate independent of each other. However, the highest federal court plays a crucial role by acting as an ultimate arbiter in the inter-state disputes, or the disputes between the federal government and state governments. It also interprets the constitution and exercises the power of judicial review.

Pakistan is a federal republic only in form, rather than in substance. We are still lagging far behind the ideals of federalism. The framers of the 1973 Constitution of Pakistan didn’t opt for a Dual Court System. They just replicated the Indian Judicial system in Pakistan. Based on a single hierarchy, the judicial structure in Pakistan can be categorized into the constitutional or superior judiciary and the subordinate or lower judiciary. In fact, Supreme Court is part of the monolithic federal structure in the country which is often blamed for obscuring the provincial autonomy and other constitutional rights of the federating units. Through passing the 18th constitutional amendment in 2010, an attempt has been made by the parliament to attain the ideals of federalism. However, the makers of this constitutional amendment only focused on redefining and re-determining the powers and functions of the legislature and the executive branch of the government. They didn’t try to revamp the role of the judicature in the interest of federalism.

Supreme Court is the highest constitutional court in the country. It exercises considerable control over the provincial High Courts. The CJP heads the important constitutional bodies like Judicial Commission of Pakistan and Supreme Judicial Council. Thus judges of the apex court not only nominate the judges of the provincial High Courts but also regulate their conduct. Besides this, Supreme Court also issues directions to the provincial constitutional courts. This practice is apparently against the spirit of federalism. There has also been a growing tendency among the country’s top judges to intervene in the administrative affairs of the provinces in the name of judicial activism. At times, various provincial administrations have been making complaints against this ‘judicial encroachment’.

Being a court of last resort, Supreme Court hears appeals from all cases, including a case originating in the court of a civil or session judge at the district level. This pyramidal structure of our judicial system is the primary reason for the heavy backlog of pending cases before the apex court. This is the reason there are only 9 judges of the Supreme Court in the United States who efficiently handle cases from 50 states while even 17 judges of the Supreme Court in Pakistan often find it difficult to effectively manage cases from only 4 provinces. Indeed, things will get worse if the overburdened apex court starts excessively exercise its extraordinary Suo Motu jurisdiction to take cognizance of diverse cases.

Pakistan inherited the colonial-era model of district administration at the time of its independence. Under this model, a district management officer used to act as an executive magistrate and a judicial magistrate simultaneously. However, over a period of time, this practice has been abandoned by gradually separating the executive magistracy from the judicial magistracy at the district level. Unfortunately, now, in a sense, the apex court has just resurrected the old governance model at the higher level by excessively exercising its Suo Motu jurisdiction. In fact, most of the Suo Motu actions taken by the apex court in recent times are largely related to the traditional functions performed by the defunct district magistrates. Certainly, the separation of executive from judiciary is as important and desirable as vice versa.

As the executive and its subordinate public departments have become almost dysfunctional and nonresponsive to the public interests, it certainly looks good when the country’s top judge takes Suo Motu actions against the incompetent and corrupt public officials to safeguard the rights and interests of the masses. However, at the same time, this is a bitter fact that a few judges of the apex court can’t monitor each public department in the country to rectify its governance irregularities and inefficiencies. The apex court can certainly not perform simultaneously the functions of the federal and provincial agencies like NAB, FIA, police, health department, food department etc, besides a large number of public-sector regulators. It certainly has no inbuilt capacity to perform these tasks.

There are no quick fix solutions to our chronic governance woes. Indeed, a proactive institutional response is desirable to overcome the underlying governance challenges in the country. Each branch of the government will have to perform its institutional role diligently. Only some vibrant and efficient accountability bodies can help combating corruption. Similarly, each public regulator in the country is required to pro-actively play its respective role to ensure good governance. Local communities also need to be mobilized to keep an eye on the performance of public officials at the lower level.

The judiciary, as an institution, can also play an important role in ensuring good governance. It is the pivot of the criminal and civil justice system. Courts are generally the last resort for the people aggrieved by the administrative inefficiencies, corruption and malfunctions. So, a vibrant judiciary can go a long way in minimizing the suffering and miseries of the ordinary people. Therefore, the apex court should focus on improving the institutional capacity and efficiently of both the superior and lower judiciary in the country.

If the apex court can’t absolutely resist its tendency to exercise Suo Motu jurisdiction to safeguard the ‘public interests’, it should, at least, devise some rules to regulate the proper exercise of this extraordinary jurisdiction. To begin with, there must be some extraordinary or exceptional circumstances warranting the Suo Motu intervention by the apex court. Similarly, the apex court should exercise this jurisdiction when there is a “case of first impression” - a case involving the question of the interpretation of law which has never arisen before in a reported case. The Suo Motu notice recently taken by the apex court in the Shahzeb murder case certainly involved this sort of question. So, in this case, a three-member bench of Supreme Court, headed by the CJP, has determined the question of the legality of a compromise in the terrorism case. Similarly, the apex court should only intervene in the matters involving violation of individuals’ fundamental rights if the relevant executive authorities fail to properly or adequately respond.

In Pakistan, Article 199 of the Constitution provides an effective legal tool to the provincial High Courts to deal with the public Interest litigation. Every day, these High Courts exercise this jurisdiction to provide relief to hundreds of individuals against the arbitrary or illegal acts committed by the public officials and state functionaries. Therefore, the apex court should exercise maximum restraint while exercising its extraordinary Suo Motu jurisdiction to intervene in the matters which are essentially within the exclusive domain of the executive. This sort of ‘pubic interest litigation’ is likely to give rise to certain administrative complexities and anomalies rather than providing any substantial or sustainable relief to the masses. Therefore, while asserting itself as an institution, the apex court should not let the notion of ‘judicial activism’ transform into the ‘judicial executivism’.