Of suo moto notices and justices

A judge sitting in his apartment saw a murder happening in the street. A man stabbed another man and ran way. Meanwhile, two people were approaching the site: one of them was a baker and the other was a constable.

The baker, hoping to help the injured, tried to pull out the bloody knife from his body. The constable saw this and arrested him. The case was presented in the court of the same judge, who, citing the circumstantial evidence, condemned the baker to death. The judge overlooked the fact that he saw what had happened.

Quoting this story from the 18th century, Dr Huma Baqai, an associated dean at the Institute of Business Administration, said the incident gave impetus to judicial activism.

She quoted another story from the US judiciary in which a judge abolished the separate schooling systems for white and black children remarking that it was against the law and the constitution. “This is where judicial activism started.”

Dr Huma and Ikram Sehgal, chairman of the Pathfinder Group, were moderating the 10th Karachi Literature Festival’s (KLF) session titled ‘Judicial Restraint vs Judicial Activism’ on Saturday.

Former chief justice of Pakistan (CJP), Mian Saqib Nisar, was supposed to be the speaker, but he could not make it and was replaced by former Sindh High Court judge Mujeebullah Siddiqui and Citizens-Police Liaison Committee founding chief Jameel Yusuf.

Talking about suo moto notices — the legal term that most of the local audience have become well aware of because of its frequent use by two former CJPs (Nisar took 70 notices and Iftikhar Muhammad Chaudhry 417, the most by any top judge in the country) — Dr Huma stated its meaning as “when the judiciary has to do what it has to do”.

Before she handed over the session to Yusuf to speak, she added that judicial restraint is categorised as the conservative approach and judicial activism as the liberal approach, so it is approach rather than one versus the other.

Yusuf said that the topic should be about judicial outreach and outstretch. He then mentioned the case of the Pakistan Kidney & Liver Institute in Lahore, whose head Dr Saeed Akhtar was removed and put on the exit control list on the Supreme Court’s orders because there was allegedly mismanagement and corruption at the hospital. “It caused chaos and no treatment was done there until a three-member bench of the SC reversed it all,” he said, claiming that such actions have destroyed the Empress Market and the livelihood of hundreds of people, at the very least.

He said that it is a failure of the judiciary that the common people still long for justice and that the backlog at the lower courts is increasing.

Moving on to Siddiqui, Dr Huma quoted a remark, which she said was hard for her to repeat: “Those who commit atrocities and crime here are so big that they evade the course of justice.”

She sought his views on this. “In the prevailing situation, it is proving true,” he said.

He, however, did not comment on it any further.

He said that judicial activism is a double-edged sword and that the problem rises from separating it from restraint.

“The courts are courts of law and not of justice. They must do justice in accordance with the law. Otherwise there is no difference between a court and a Jirga,” he said, pointing towards the problems that the courts face during trials when the accused is found dangerous and powerful and the people avoid deposition against them fearing backlash.

“There may be one solution to these things which is also mandated under Islamic jurisprudence.

“Under it the punishment can be given through an administrative authority besides courts.

“It should happen in cases where the administration is convinced that the accused is a criminal but no one is willing to testify against them. This is how we can prevent the benefit of the doubt to the accused who is a criminal,” he explained. Provided, the former judge stressed, the system is transparent.