ISLAMABAD: Following the retirement of former chief justice Iftikhar Mohammad Chaudhry, an age of ‘judicial activism’ at the Supreme Court came to an end. During his term as the top judge, the apex court was known for taking suo motu notices on nearly all matters deemed to be “in the public interest” and was often the source of breaking news.

Often, decisions on these matters, including high-profile cases such as the missing persons’, Karachi law and order and the privatisation of the Pakistan Steel Mills to name a few, were considered a thorn in the government’s side.

But after his exit, suo motu notices have been few and far between.

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However, as the apex court – led by a new chief – concentrated its energies on purely legal matters, the Islamabad High Court (IHC) emerged as the successor to the Supreme Court of old, handing out verdicts that often went against the wishes of the government.

High court now undoing govt’s ‘dirty work’ in a manner reminiscent of Justice Iftikhar Chaudhry’s Courtroom No 1, critics say

Under Justice Chaudhry, the SC took up cases that now fall under the purview of the IHC, such as matters relating to government departments in the federal capital. Established in August of 2010 by an act of parliament, the IHC has jurisdiction over all federal ministries their allied departments, autonomous bodies and corporations.

The IHC became functional in January of 2011, but the SC continued to entertain several petitions that would otherwise fall into the remit of the IHC, such as petitions relating to the Pakistan Electronic Media Regulatory Authority (Pemra).

According to Abdul Rahim Bhatti, a senior lawyer, the SC assumed the jurisdiction of a high court under Article 184 of the Constitution. “Although the apex court rarely invokes Article 184, but we witnessed an excessive use of this law during the tenure of Justice Chaudhry,” he said.

The excessive use of suo motu powers under the former chief justice, while making the media happy with Courtroom No 1, made professional lawyers uneasy as many felt that their cases were not being heard properly, Mr Bhatti said. But he was quick to add that other benches of the court were just doing their job at the time and did not seek to emulate their chief.

But after December 2013, such matters were left to the IHC. In this time, the new high court has set aside several key appointments, as well as handing down some major verdicts against government decisions on the ‘hiring’ and ‘firing’ of key personnel.

Since January of this year, the IHC reversed government decisions regarding the sacking of National Database and Registration Authority (Nadra) Chairman Tariq Malik, Pemra Chairman Chaudhry Rashid Ahmed and acting Pemra chairman Pervez Rathore, Pakistan Television Managing Director Mohammad Malick, Alternate Energy Development Board (AEDB) Chief Executive Officer Dr Basharat Hassan Bashir and Accountant General of Pakistan Revenue (AGPR) Tahir Mehmood.

The court also thwarted government attempts to install a chief of their liking at the Pakistan Cricket Board (PCB) by twice restoring Zaka Ashraf as chairman, in January and May of this year.

The court also denied the government the luxury of filling 22 key posts in public sector organisations without adopting following set procedure and suspended notifications issued by the government in January and March of this year, whereby certain appointments to such organisations had been exempted.

Recently, the IHC restrained the government from interfering in the domain of the auditor general of Pakistan (AGP). The incumbent AGP Akhtar Buland Rana was apprehensive that the government wanted to replace him with Controller General of Accounts Farah Tarin, but the IHC order shielded him from such a move..

Most recently, the court has been deliberating on the imposition of Article 245 in the capital, has taken up the Pakistan Tehreek-i-Insaf’s plea regarding Section 144 and also took up a petition challenging overbilling in electricity bills before the Eid holidays.

In the second case, the court ordered the release of about 1,000 individuals picked up for violations of Section 144 of the Criminal Procedure Code (CrPC) and quashed all the FIRs registered under the section.

Syed Nayyab Hassan Gardezi, a-twice elected president of the IHC bar, said that in certain situations, the court had no choice but to pass an order against the wishes of the government

In the past, when the Supreme Court would take suo motu action against the ‘negligence’ of the previous Pakistan People’s Party (PPP) government, the main opposition Pakistan Muslim League-Nawaz (PML-N) would welcome the decisions. But now they were facing a similar situation, only this time it’s the high court that is the source of their worries.

In addition, the Supreme Court’s unwillingness to entertain several lawyers and other individuals known for filing frivolous petitions has led them to the corridors and the bar room of the IHC. But even though the high court has begun handing out fines for pursuing unnecessary litigation, the trend is still very present.

Mohammad Ramzan Chaudhry, vice chairman of the Pakistan Bar Council (PBC), told Dawn that since January of this year, outgoing Chief Justice Tassadaq Hussain Jillani and his successor Chief Justice Nasirul Mulk had discouraged frivolous litigation and concentrated instead on their professional obligations.

“Unlike Justice Chaudhry, his successors did not take excessive suo motu notices, nor did they entertain unnecessary petitions,” he said.

He also said that case disposal rates had climbed after Justice Chaudhry’s retirement, adding that the apex court no longer interfered with the domain of the legislature or the executive and that the overall system had improved severely due to this fact.

He said that since late last year, the apex court is deciding more cases than it had ever done in the past and was no longer providing ‘spicy tickers’ to the media.

A major example of such judgments is the landmark decision by former chief justice Tassaduq Hussain Jillani, who had Nadra develop a ground-breaking policy for the registration of orphans – a hitherto ignored and severely vulnerable segment of society.

Retired Justice Tariq Mehmood also echoes this sentiment. “The presence of the media in Courtroom No 1 has been sharply reduced and only a couple of journalists are seen in this courtroom,” he said.

“For me, it is very significant that the discipline of the courts has improved drastically,” he said.

Supreme Court Bar Association President Kamran Murtaza said that before December 2013, Courtroom No 1 was only hearing suo motu matters and the cases of the common man were not being heard properly.

“At that time, the court seemed to be especially kind to five or six lawyers, whose cases were heard properly. But most lawyers’ cases were deferred or adjourned without any proceedings,” he said.

Published in Dawn, October 10th, 2014