2014: From judicial activism to judicial restraint

A number of previous verdicts were reversed; military courts top challenge in 2015


Hasnaat Malik December 31, 2014

ISLAMABAD:


The outgoing year marked a departure from four long years of judicial activism under former chief justice Iftikhar Muhammad Chaudhry, with two of his successors adopting a policy of judicial restraint, with an enhanced focus on deciding the chronic backlog of low-profile cases – a policy widely supported by the legal fraternity.


From March 2009 till the end of 2013, judicial activism was marred by frequent confrontations between the superior judiciary and other state institutions – including the executive, the legislature, the election commission and other government departments.

In an era dominated by the judiciary spurred media frenzy about high-profile contempt cases against politicians, judges, bureaucrats and journalists, while proceedings in cases of ordinary citizens were severely affected.

Yet in 2014, chief justices Tassaduq Hussain Jillani and Nasirul Mulk turned a new leaf by refusing to interfere in politics, governance and economic policymaking – largely a purview of other state institutions. Since March 2009, not even a single top court bench has been constituted to hear high-profile cases.



Throughout the outgoing year, barring one contempt case, the apex court focused its attention on disposal of the cases of ordinary litigants. Conversely, ordinary litigants, who came from remote areas of the country to appear before the court, faced immense hardships during the tenure of Iftikhar Chaudhry as their cases were repeatedly adjourned due to the prolonged proceedings of high-profile cases.

In 2014, the apex court formed a special bench, headed by Justice Asif Saeed Khan Khosa, to hear only pending criminal cases. All appeals in such cases are likely to be disposed of in the near future. Justice Chaudhry had listed 95% high-profile cases before his bench during his eight-year tenure but his predecessors have given priority to public interest matters in different benches of the Supreme Court.

“After decades, we have a very good chief justice,” said former president of the Supreme Court Bar Association (SCBA) Asma Jahangir about Justice Nasirul Mulk.

Another former SCBA president Kamran Murtaza concurred. “The bar is fully satisfied with the policy of judicial restraint,” he said, adding that the incumbent chief justice and his predecessor have redressed the grievances of the lawyers’ community by considering the reappointment of judges ousted through the court’s July 31, 2009 verdict.

Similarly, Kamran appreciated the role of the superior judiciary during the recent sit-ins by the PAT and PTI on Islamabad’s Constitution Avenue. He was referring to the August 15 order of the Supreme Court restraining all state functionaries from taking any extra-constitutional steps in the ensuing political logjam – emphasising that judicial restraint should not be obfuscated with a decrease in judicial independence.



Speaking about the damaging effects of the four years of unrestrained judicial activism, former governor State Bank of Pakistan Ishrat Hussain had said that the economy had suffered due to the interference of the superior judiciary in recent past. “The risk profile of Pakistan, which was already quite high, has been elevated with the addition of Litigation Risk,” he had said in his address at the annual National Judicial Conference on April 19.

At the end of 2013, tensions between the executive and the judiciary had reached the boiling point over the contentious case involving 35 missing persons and the local government (LG) elections.

After the immense pressure by the Supreme Court regarding the implementation of its December 10, 2013 ruling in the missing persons case, the federal government had decided to register an FIR against petty army officers. However, soon after Justice Chaudhry’s retirement, the judiciary adopted a softer policy on the missing persons’ cases and deferred the LG polls on the premise that provincial governments did not have the authority to delimit constituencies.

Similarly, a number of other verdicts handed by Justice Chaudhry were reversed by the apex court in 2014. These include the prime minister’s discretionary fund case allowing the government to release funds for development projects in ‘national or public interest’ without taking parliament’s approval and the court requirement of a commission to ensure transparency in the appointment of heads of various statutory, autonomous and regulatory bodies.

Progressive court rulings during the year included a landmark judgment regarding the protection of minorities’ rights on June 19 and the court’s determination to ensure the appointment of a permanent chief election commissioner on December 5. Unlike the past few years, frivolous petitions filed by habitual petitioners on different issues were sternly discouraged during 2014.

However, one small section of lawyers that strongly supported judicial activism believes that the incumbent judiciary is declining day by day because it is not taking notice of alleged irregularities’ of the incumbent government.

Legal experts say the biggest test for the incumbent superior judiciary in 2015 is likely to come in the shape of the establishment of proposed military courts, where a number of human rights petitioners are expected to challenge the government’s decision in light of fundamental rights guaranteed in the Constitution.

Published in The Express Tribune, December 31st, 2014.

COMMENTS (1)

oBSERVER | 9 years ago | Reply

There was no such thing called judicial activism.It was goondaism led by a corrupt politician in the garb of a judge. He never saw straight and this damaged the judiciary and lawyers as a whole. We hope lessons were learnt. So far this does not look so. Supreme Judiciary has failed to prove as a pillar of State. Government? YES.

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