A BENCH of the Supreme Court headed by Chief Justice Asif Saeed Khosa recently vacated a stay order granted by former chief justice Saqib Nisar against the government levying taxes on mobile phone top-up cards. In restoring the tax, the court has laid to rest another order pronounced by Saqib Nisar.
The decision to temporarily restrain the levying of taxes on certain telecom services came at a time when the government was running from pillar to post in an attempt to revive our economy. Pakistan Steel Mills and Reko Diq, it seems, may not be the only ghosts that haunt our economy. Yet, the order was symptomatic of the Supreme Court’s jurisprudence during justice Nisar’s tenure. The arbitrary exercise of suo motu powers, visiting hospitals, whimsically slashing private school fees and building dams were all justified under the pretext of safeguarding fundamental rights. The principle of separation of powers that constitutes the cornerstone of our constitutional dispensation was trampled over as the judiciary ran roughshod over the political branches of the state. The camel’s proverbial nose was well under the tent.
Contemporaneous with justice Nisar’s visits to hospitals and his fixation with conferences on water resources, a petition to defeat delays and reform the justice sector titled ‘Umar Gilani v Federation of Pakistan’ was filed before the Supreme Court. The petition impleaded the chief justices of all four high courts and sought massive restructuring of the country’s judicial system. However, it was disposed after assurances from the law ministry to consider the proposals mentioned therein. Justice Nisar, it appears, had the wisdom and will to institute reforms in every institution, except the one he was actually entrusted to improve.
Judicial activism is often justified in nascent democracies like Pakistan where the judiciary is seen as a bulwark against corruption, misgovernance and the executive’s excesses. Nonetheless, incessant interference in matters legitimately consigned to the political realm arrests the evolution of political institutions and contributes to the insidious process of institutional decay.
Judicial activism is often justified in nascent democracies.
Moreover, where the judiciary presents itself as an alternative to the democratic government, its actions are often dictated by populism, thus defeating the very notion of the judiciary being a counter-majoritarian institution. It was perhaps this realisation that prompted Chief Justice Khosa to speak about revisiting the Supreme Court’s suo motu jurisdiction and its jurisprudence under Article 184(3) of the Constitution, retiring the debt of pending litigation and introducing numerous reforms in his inaugural speech. It manifested the court’s desire to rectify some of its previous wrongs.
While sharing his vision for the future, Justice Khosa acknowledged that his plans may face resistance from vested interests used to the old ways. Nonetheless, he announced, “With Baloch blood running in my veins, I shall fight till the end.” The words proved to be prophetic. One of his first endeavours to introduce reforms was witnessed as the National Judicial Policy Making Committee decided to restrict the scope of Sections 22-A and 22-B of the Criminal Procedure Code. A magistrate, it was decided, would entertain complaints against the non-registration of FIRs only after an aggrieved person has first approached the superintendent complaints. The decision, however, was met with resistance from bar associations across the country, given the decision’s implications on the economic interests of the legal fraternity.
Such protests form part of a large chain of events that started with the restoration of the judiciary in 2009. Bar associations and lawyers were emboldened as they saw judges beholden to them for their restoration. While some, like former chief justice Jawwad S. Khawaja, attempted to rein in the lawyers’ unbridled powers, many members thwarted such attempts as they vied for the bar’s support for their own interests.
In 2017, for instance, the then chief justice of the Lahore High Court, Syed Mansoor Ali Shah, took notice of lawyers in Multan vandalising a court building and engaging in unruly behaviour with a judge. What could have been a watershed moment against hooliganism by members of the bar was lost when the then chief justice of Pakistan put his weight behind the protesting lawyers. The matter was later ‘amicably resolved’ between the lawyers and Justice Shah’s successor. What continues to be unresolved though is the lawyers’ ability to sabotage reforms that threaten their economic or political interests.
Whether today’s Supreme Court has the resolve to ‘fight till the end’ those it was once seen as appeasing is yet to become clear. It could define both the present chief justice’s legacy and the fate of his proposed legal reforms. Some wrongs are yet to be rectified. We stand on the edge of the precipice. It may be now or never.
The writer is a lawyer.
Published in Dawn, May 12th, 2019