When restraint renders judicial activism harmless

SC under CJ Gulzar Ahmed has continually tempered its stance on AGPs intervention

Hasnaat Malik May 21, 2020

ISLAMABAD: Both the top opposition parties of the country – the PPP and the PML-N – bore the brunt of the judicial activism of two former chief justices of Pakistan (CJ) Iftikhar Chaudhry and Mian Saqib Nisar. But the judicial activism of the incumbent CJ Gulzar Ahmed has so far been harmless for the executive.

It was reflected in CJP Gulzar's first speech on December 20, 2019 that judicial activism will be revised and eradication of corruption as well as maladministration would be his high priorities.

However, despite giving harsh remarks and observations against maladministration and the federal government functionaries, the CJP has not passed any coercive order during the last five months.

Even the SC has facilitated the federal government in few matters like granting permission to hold general elections in Gilgit-Baltistan (G-B) region and tempered its stance in several cases when the court was requested to show judicial restraint.

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During hearing of a suo motu case regarding billions of rupees losses in Pakistan Railways, the CJP on January 28 grilled Minister for Railways Sheikh Rashid for the organisation’s poor performance and said the minister should have resigned after the Tezgam tragedy which claimed 74 lives.

On the same day, Rashid expressed apprehension over the ongoing judicial activism during a cabinet meeting. At the next hearing, the CJ showed restraint and did not make any harsh observation against Rashid. After hearing of case, the minister was jubilant as he escaped tough time at the hands of the CJ.

During the hearing of a case against the appointment of Air Marshal Arshad Malik as the chief executive officer (CEO) of the Pakistan International Airlines (PIA), the SC again showed restraint.

Earlier, the SC bench led by the CJ grilled the federal government for appointing a serviceman as the CEO of the national flag carrier by violating the rules and regulations.

The judges had also questioned performance of the PIA during Malik’s tenure, suspended his appointed as the PIA chief and asked him to abandon one of the two posts. The government sources had revealed that Malik had expressed unwillingness to leave the PAF.

However, Attorney General for Pakistan (AGP) Khalid Javed Khan on March 18 convinced the bench to restore Arshad Malik as the PIA chief.

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Currently, a five-judge larger bench headed by the CJP is hearing a suo motu case about Covid-19.

The bench initiated the suo motu proceedings during hearing of a petition filed by two lawyers against high courts orders for release of prisoners in view of coronavirus situation.

Up till now, the bench has not focused on one issue. It has identified several issues like regulation and utilisation of Zakat fund, regulation of federal departments, activities in the provinces and the interpretation of Article 149. However, the bench has yet to issue ruling on these issues.

The bench has also given two contrary orders during hearing of the case in this week.

The court on Monday asked the federal and provincial governments not to use all their resources to fight coronavirus disease, which, it observed, has not become a pandemic in the country – particularly when the country is facing numerous other challenges, including other deadly diseases.

The bench completely changed its approach when AGP Khan highlighted some key aspects of the case.

The court on Wednesday said it is “fully cognizant” of the menace of coronavirus in Pakistan and also of the fact that the disease has caused a large number of fatalities.

Once the CJ in his remarks expressed dissatisfaction over performance of Special Assistant to the Prime Minister on Health Dr Zafar Mirza and asked the federal government to remove him. Later, the court passed no written order in this regard.

One section of lawyers believes that unlike his predecessors, the incumbent CJ has no hidden agenda to initiate suo motu proceedings. "He is very straightforward. When proper legal assistance is given by the law officers etc, he reviews his approach," said a senior lawyer.

However another section of lawyers believes that public opinion is against judicial activism and the social media reflects this adverse opinion. When majority of public does not support a judicial move then it becomes difficult for the court to continue with judicial activism, they claim.

Some lawyers also urge the SC to regulate suo motu jurisdiction as well as formation of benches. They believe that the judiciary should only focus on improving the justice system.
Karachi based lawyer Salahuddin Ahmed said the apex court must be more careful in its oral and written observations so that it does not have to clarify or even retract them afterwards.
However, the apex court led by CJP Gulzar Ahmed view is consistent about the Sindh government's administrative affairs. The apex court led by the CJP has also raised questions about conduct of high courts in different matters especially release of prisoners on bail after coronavirus.
Even despite questioning appointments of a larger number of special assistants to PM and size of the federal cabinet, the apex court did not entertain constitution petition against their appointments.