Muhammad Najm Akbar
November 4, 2018
Pakistan has evolved a populist judicial model unique to its rotating Chief Justices of Supreme Court with a fairly credible rate of public approval, if we were to believe the opinion polls. Each Chief Justice has left his mark on Pakistan’s judicial history fulfilling his constitutional role particularly when facing constraints imposed by military-backed civilian leaders or directly by military dictators. Since mid-90s, activist Chief Justices like Sajjad Ali Shah, Iftikhar Chaudhry and currently, Saqib Nisar have projected judicial power through selected range of issues that resonate more effectively with the public aspirations.
Judicial populism is a corollary of roaring democratic forces in Pakistan making their way through the hurdles and obstacles erected by the military regimes or their surrogates. It functions well when it attempts to shape the future course of democratic movement in Pakistan. Chief Justice Sajjad Ali Shah could therefore take on two elected prime ministers, with varying degrees of success. He was able to secure judicial authorities’ upper hand in the appointment of judges but later on awaited helplessly for assistance from the military as an elected government physically attacked the Supreme Court and engineered a split within his peers. Chief Justice Chaudhry created history as lawyers braved a military government’s excessive brutality to wage a struggle for his restoration and later on stood by him when he battled consequences of the re-imposition of emergency by the same military ruler. Allegations of personal corruption aside, he disqualified an elected Prime Minister as did the current Chief Justice. The current Chief Justice has, nonetheless, strived to outdo his predecessors in respect of proactive judicial activism. He has launched a successful and extremely popular drive to build much-needed dams in Pakistan and is considering a fight against the trend of burgeoning population in Pakistan. Actions or warnings against excesses of federal or provincial authorities are a daily occurrence as cabinet members, senior politicians or officials respectfully respond to a record number of suo moto notices, the most visible manifestation of judicial activism in Pakistan.
While the populist judicial model responds to some of the public aspirations, the extremists pose a highly complex challenge. These religious fanatics have poured their anger and fury against the Court’s landmark decision of October 31, 2018, delivering Asia Bibi from the clutches of blasphemy law after almost a decade of her life spent in the state prisons. The Court faces extremists’ hysteria hurled on the streets while a silent majority, equally enthusiastic about the verdict, would fail to express its joyful reaction fully. The extremists have forced a military-backed civilian government to adopt what a federal minister defined as “firefighting” approach while fanaticism sought to impose its will on the justice system. In return for the concessions that the government has made to the mob, the protestors have withheld violence pending a final verdict on the review petition they have filed against the Court’s judgment. The government is, however, gradually distancing itself from the military-mediated truce with the extremists whose leadership has issued religious edicts sanctifying assassination of the Chief Justice and the Chief of Army Staff.
The Court is least likely to change its mind having laid down a detailed rationale for the verdict it delivered. As the Court summed up in its judgement, the extremists pose a potent threat to the state. Over sixty persons accused of blasphemy since 1990s, it noted, had been murdered even before the Courts concluded the cases. The court also pointed out that the contradictions in the legal procedures and the evidence presented to the lower courts, including the High Court of Lahore, had been most conveniently overlooked while the innocent defendant wasted long years of her life in prison cells. The extremists’ protest would, therefore, most likely resume.
Confronting religious fanaticism would be a different ballgame than taking on the political leaders. The current Chief Justice has upheld a court tradition which has to date blocked all actions under blasphemy law as amended by military dictator Zia-ul-Haq. He is, nonetheless, way behind Sajjad Ali Shah who had initiated suo moto hearings following rising tide of sectarian killings. Review petition is not the real test. The real challenge for the Court is to correct the judicial transgressions and legal flaws that lead to cases such that Asia Bibi faced and deprive the extremists of the legal mechanisms they can exploit to perpetuate their will.
Another related serious issue that the populist judicial model has ignored so far is the growing number of pending cases in Pakistan’s lower courts, about two million according to a 2016 document. An overseas Pakistani recently got on to YouTube making a sensational offer to contribute the entire held up income from a decades old property law suit to the Chief Justice’s initiative of making dams if he could issue a final verdict on it. The Court needs to ensure speedy justice as well if it would like to be credible.