Whatever one’s opinion of retired Supreme Court chief justice Saqib Nisar’s tenure may be, there can be no doubting that he has been one of the most consequential judicial figures in our history. During his tenure, it almost became routine for the Supreme Court to involve itself in matters of the state – big and small. For many legal observers, CJ Nisar’s tenure – rather than acting as a constitutional check on the executive and the legislature – seemed more about using populism on par with the other branches of government. The question that remains to be answered is if the influence this will have on our country is positive or negative. As an example, the Supreme Court’s decision to unilaterally reduce the fees charged by private schools may have had the salutary effect of reining in those who exploit education for profit but because it was done without a plan and accompanying legislation the only effect it has had so far is to lead to downsizing at private schools and a reduction in extracurricular services provided to students. For reforms of the kind the former chief justice was attempting, the buy-in of the people through their elected representatives is essential. Without that, change will only be transient.
CJ Nisar didn’t restrict his judicial activism to corruption cases. He energetically dove headlong into all kinds of issues, making our water crisis his pet cause and taking suo-motu notice of problems with hospitals, sanitation and private schools. The fund he set up to raise money for dams became an overarching concern to the extent that it may have compromised the perception of impartiality of the judiciary as those with cases pending before the courts donated to this fund. That fund is far from reaching its target and it will now have to be decided, in a transparent manner, how it is to proceed.
There are some who will argue that Pakistan is facing so many problems today that these kinds of interventions were necessary. Even if that is the case, a tenure of judicial restraint by Justice Nisar’s successor, Chief Justice Asif Saeed Khosa, would be a welcome change. In the past year or so, the Supreme Court has taken on so many high-profile cases that the regular business of the court has suffered. The next few years now need to be dedicated to clearing up the massive backlog that has clogged our entire judicial system. A visionary chief justice would rather wish to set his own house in order before taking on any new projects. CJ Khosa will certainly have enough on his plate, with reforms needed on many levels – from a plethora of pending cases to the appointment of judges to ensuring that the justice delivered is not only speedy but reliable and fair as well. What Pakistan’s judicial system needs most at the moment is stability – not a saviour figure but someone who manages to get the job done. To this end, Chief Justice Khosa’s initial statements are an encouraging sign.