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Monday January 17, 2022

This broken system

December 22, 2017

A Supreme Court bench headed by Honourable Chief Justice of Pakistan Saqib Nisar has directed the Sindh government to provide clean drinking water to the people of Sindh.

The honourable bench summoned the Sindh chief minister to make sure that provincial authorities take action to fix this problem. A week later, the chief justice and two other honourable judges of the bench visited Mayo Hospital in Lahore to look at the facilities and services provided to the general public.

This kind of judicial activism shows that there is something seriously wrong with the system. It is the basic responsibility of the executive to provide education, health, sanitation, clean drinking water and other services to the people. The executive is not performing its duties and responsibilities properly. So the judiciary is stepping in.

Judicial activism can be particularly helpful in a society where the governments are unresponsive and the administrative machinery is by and large dysfunctional – as is the case with Pakistan. This explains why many people supported the Supreme Court when it took up cases of police torture, missing persons, gross injustice and violations of human rights and scams involving powerful politicians and businessmen.

I have no doubt in my mind that the CJP and other honourable judges of the apex court are seriously concerned about the basic services and needs of common citizens. I am convinced that the judiciary is just trying to improve the situation and awaken the dysfunctional state machinery. The judges are trying to fix a broken system and ‘keep the ship of the state afloat’. The question is: can the superior judiciary fix this corrupt, dysfunctional, incompetent and broken system via judicial activism? I don’t think so.

Former CJ Iftikhar Mohammad Chaudhry tried to fix this broken system but failed. His judicial activism clearly showed the limitations of this process, which cannot fix a decaying system. Judicial activism can help improve governance and make the authorities more accountable. But it cannot bring any fundamental change in the system nor can it solve all the basic problems faced by the people.

There were high hopes that the restoration of the judiciary would provide justice to all and establish rule of law, and reform the system. But that never happened. Former CJP Iftikhar Chaudhry failed to reform the judicial system to provide speedy justice to common citizens. His judicial activism failed to end the long delays in the dispensation of justice and the backlog of cases in court. (Nearly 3.8 million cases are pending in different courts in the country. It still takes years to get justice). Judicial reforms can improve the situation. It is really surprising that the superior courts have not made efforts to guide the legislature and the executive on initiating meaningful judicial reforms.

It has been felt that, at times, the superior courts have intervened in matters beyond their capacity. That results in a waste of the courts’ precious time without producing the desired results. For example, the Supreme Court’s attempts to regulate the price of sugar, petroleum and power rates were not successful.

The way the apex court determines the priority of the cases may also need to be reviewed. For years, it decided to ignore Air Marshal Asghar Khan’s petition on the establishment’s financing of selected politicians, the petition for land reforms and electoral reforms, while taking up several cases of lesser national importance during the period.

We have a serious problem here. When the legislature exceeds its power, the judiciary steps in. When the executive exceeds or misuse its authority or powers, the judiciary steps in. When the lower judiciary makes a mistake, the superior judiciary can fix it. But when the superior judiciary sets problematic precedents, there is no remedy. To put it more or less prosaically, in the past the judiciary’s role in our history was generally making egregious acts by dictators – and sometimes civilians – clean and constitutional.

But now, if the judiciary intervenes in everything it becomes controversial. The Supreme Court and high courts cannot become an alternate to the executive and legislature.

The situation can become even more complicated when the Supreme Court decides cases of a political nature. The decision of the Panama case – in which former prime minister Nawaz Sharif was ousted – and the recent decision to clear Imran Khan from disqualification both drew criticism from different quarters.

Radical reforms in the state structure and the political system can fix many problems and improve the governance and delivery of services and basic needs. Pakistan needs radical reforms – judicial, economic, administrative, political and social – to overhaul the system. Judicial activism is no substitute to such reforms.

Judicial activism is a double-edged sword, and has to be exercised with caution. Sometimes, such things lead to actions that create political uncertainty and thus have a negative impact on the national economy and the continuation of the democratic process.

The writer is a freelance journalist.

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