From Bajwa doctrine, judicial activism to executive’s shrinking domain

ISLAMABAD: Bajwa doctrine goes beyond the military’s constitutional mandate, and at times so does the judicial activism of Hon’ble Chief Justice Mian Saqib Nisar.

Both overstep the civil government’s domain, yet it becomes difficult to defend the latter’s case convincingly when the executive too failed to deliver and political rulers could not perform.

However, history is also witness to the fact that the establishment’s interventions, direct or indirect, create problems more than before. Unfortunately, the judicial activism has also been used more for attention seeking than helping the executive to fix problems and institution building.

Argument of evolutionary process in defence of democracy or the elected government does not click when the elected rulers don’t make any serious effort to correct the obvious wrongs in the system. They don’t take any interest in institution building, hate reformation and don’t show much keenness to deliver what they promise in their election manifestos. Democracy can’t be defended and civilian supremacy will remain a far cry with such an attitude.

For example, the present PML-N government though did well in areas of mega projects, power production and checking terrorism, it did little or nothing towards institution building, depoliticisation of civilian bureaucracy and police, improvement in education sector and health facilities, introduction of legal reforms for speedy and inexpensive justice, overhauling of the institutions like NAB, FIA, FBR etc.

Interestingly, almost everything mentioned above, which is imperative to change the life of a common man, was part of the PML-N 2013 election manifesto but it had no time to pay attention to these areas.

Such an attitude of political governments weakens the case of those believing in constitutional rule and democracy, and thus paves the way for establishment’s maneuvers and judicial activism.

Invariably, the Establishment’s intervention furthers the distortions, complicates the problems and adds to the ills of the institutions. More importantly, what the establishment usually does behind the scene is unconstitutional but still it remains unchallenged most of the time. Bajwa doctrine might have a reason to explain but legally and constitutionally the military and security agencies must focus on their own job, and should not be encouraged to take interest in the civilian matters and politics.

Judiciary, however, could contribute a lot by improving the executive and contributing towards institution building without disturbing the parameters set by the law and constitution. Sadly, it also has a wrong focus.

Examples are many. While hearing Panama case, the Supreme Court judges expressed their complete no-confidence in institutions like the NAB, FIA, FBR etc. but in their order the judges passed no direction to the government for reformation of any of these institutions.

Interestingly, the SC in the Panama case referred the cases of alleged corruption of Sharifs to the same ineffective and inefficient NAB under the supervision of a monitoring judge. The monitoring judge is to monitor only Sharifs cases while leaving for NAB the business as usual like situation in other cases. It means the SC was not keen to overhaul the NAB for across the board accountability but was only interested that the Bureau should work perfectly in a specific case that interests the apex court.

In an earlier order, the SC had sought the issuance of show cause notice to around 100 NAB officials including Irfan Mangi, the incumbent DG NAB Pindi and formerly member JIT constitution by the apex court. But the Panama judgement barred the NAB as well as the government from proceeding against Mangi.

Later the process against other alleged illegal appointees of the NAB also slowed down. And now the incumbent NAB chairman is pursuing his campaign against the corrupt with the same set of alleged illegal appointees of the Bureau.

The CJP and provincial CJs though take suo moto notices, mostly these interventions address individual cases. The suo moto power used in an individual case could, however, also lead to improvement of systems, empowerment of institutions or framing of new mechanism for the greater good of the people. But it is rarely done.

During the last PPP regime, the then chief justice took a suo moto notice in a case later commonly known as Anita Turab case. In Anita Turab case, the SC handed down a landmark judgment for the appointment of bureaucrats on merit besides protecting their tenure.

The SC in the same judgment directed the federal as well as all the provincial governments to implement its directions in the Anita Turab case. The judgement was never implemented nor did the judiciary ever asked the executive about the fate of its historic judgement, which was considered critical for the depoliticisation of civilian bureaucracy and police.

In the meantime the judiciary, however, did take another suo moto notice to save the IGP Sindh AD Khawaja from being removed prematurely. Judicial activism via suo moto could make a difference if such interventions help institution building and systems’ development. Otherwise, the suo motos can satisfy on a few while there is no dearth of cases of extreme sufferings and serious human rights violations in our society.

One suo moto, however, is direly needed against the judiciary itself whose court cases and stay orders have not only seriously dented the writ of the government, but also contributed massively to the sufferings of large number of the common man.

Pemra is just one example, whose authority to check TV channels’ growing violations is completely eroded by hundreds of stay orders issued by different court in favour of the violators. Of late, the SC in a suo moto case banned a prominent anchor for three months but nothing was done to empower the Pemra to do this job mandated to it by the law.

There are other anchors who majority of the people think are doing more nasty things than the convicted anchor did but, every time the Pemra initiates proceeding against them, a court stay order comes in the way making a mockery of the authority.