Lawyers welcome, and worry at return of judicial activism

Most note that current phase is unlike that of Ex-CJ Chaudhry, some feel fixing judiciary should be main focus

ISLAMABAD: Bar rooms around the country are buzzing with opinions on whether or not judicial activism has made a comeback at the apex court after a gap of five years.

Since the start of 2018, jam-packed courtrooms, sitting of benches for extended hours, and issuance of multiple daily press releases have harkened the era of former chief justice of Pakistan Iftikhar Chaudhry.

Chief Justice of Pakistan Mian Saqib Nisar has been spotlight after approving a first – the apex court will hear cases of public interest on weekends.



Former CJ Chaudhry had initiated judicial activism after the restoration of judges in March 2009. This continued until his retirement in December 2013.

During his tenure, Justice Chaudhry took notice over maladministration of federal and provincial governments as well as redressal of people grievances. He was also at the court complex for 16 to 18 hours every day during his tenure.

Justice Chaudhry’s remarks were covered far and wide by the press, but they also made him a controversial figure.

After his retirement, his conduct has been highly criticised by every section of society. Likewise, due to the court’s intervention in matters such as the Reko Diq case, rental power project cases and others ended up hurting the country in international courts and other forums.



His successors, justices Tassaduq Hussain Jilani, Nasirul Mulk and Anwar Zaheer Jamali distanced themselves from Justice Chaudhry’s judicial activism and adopted a policy of judicial restraint, mostly avoiding taking notice of executive failures. Their approach was appreciated by the legal fraternity.

The incumbent chief justice continued the policy of restraint last year, being very selective in taking notices over executive failures to resolve fundamental issues, but with the start of the new year, he has become much more proactive, surprising many including those who have known him personally for decades.

Major political parties have shown concern over the revival of judicial activism by the incumbent chief justice. Much like the PML-N, Pakistan People’s Party leaders are also complaining that the superior judiciary is interfering in executive affairs. The PPP has objected to the court’s orders in favour of Inspector General of Sindh Police AD Khawaja.



One section of lawyers has also shown concern over the appointments of retired judges to oversee certain matters, which are being adjudicated by the apex court.

The lawyers were of the opinion that the SC should not give any new responsibility to retired judges who are or were controversial for any reason.

A senior law officer, however, opined that the incumbent judiciary has given the concept of judicial engagement, which is a brainchild of the American court system. He believes that the chief justice is only taking notice over matters wherein the executive has shown abject failure.

Pakistan Bar Council Vice Chairman Ahsan Bhoon said Justice Chaudhry’s era of wide-ranging activism was very harmful to the country, but the incumbent CJP is only taking notices of limited issues such as health and education, where the executive has completely failed.



PTI lawyer Chaudhry Faisal Hussain also appreciated the incumbent CJP’s approach to taking notice of public importance. He added that judicial activism has already been initiated since former CJP Muhammad Afzal Zullah tenure but this approach has been misused by former CJP Chaudhry.

Another senior lawyer said that they may object to the present CJP’s style of conducting proceedings, they are sure that his judgments will not cross the parameters of the law. He also urged the CJP to ensure that his remarks and speeches should be carefully worded because everything he says is taken very seriously.

Likewise, it is an admitted fact that parliament has not legislated on the recommendations of the judiciary but it is also true that despite the request of the Pakistan Bar Council, the Supreme Court Rules, which were formulated in 1980 by the regime of dictator Ziaul Haq, have not been amended.

Likewise, the performance of the Law and Justice Commission of Pakistan has also not been up to the mark for the last decade. Some people say that there is a dire need to revamp this institution for the delivery of justice.

Members of the superior bars also complained that despite the demands of lawyers, Judicial Commission of Pakistan’s rules have yet to be reviewed to ensure transparency in the process of appointing judges.

Meanwhile, the process of self-accountability within the judiciary has slowed down. The Supreme Judicial Council, led by the CJP, initiated misconduct proceedings against a couple of judges, but the matter has been pending for months after two of them challenged the SJC’s rules in the apex court.

One section of lawyers suggested that the CJP should shift his focus only to improving the justice system, saying this is an area where he could leave a lasting legacy.