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Judicial activism in Pakistan

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06.09.2018

The strength of a country is linked to the success of its legislative, judicial and executive authorities. The function of the judiciary is to promote justice and equity through the correct application of laws and regulations to give each man his due. Pakistani leaders have expressed their interest and commitment to the judiciary since the founding of Pakistan by establishing courts and prosecution services throughout the country and facilitating the work of the judiciary in accordance with its objectives and mission. This has strengthened Pakistan’s positive image in the international community as a country with a modern, fair and impartial justice system, regardless of sex, religion or color. The roots of the current judicial system of Pakistan stretch back to the medieval period and even before. The judicial system that we practice today has evolved over a long period of time, spanning roughly over a whole millennium.

The Judicial system has passed through several epochs, covering the Hindu era, Muslim period including the Mughal Empire, British colonial period and post independence chapter. Notwithstanding the successive changes i.e. one rule/dynasty substitute by the other, which naturally resulted in the socio-economic and political transformation of the Pakistan society, the judicial system generally maintained a steady growth and gradual advance towards consolidation and improvement/refinement, without indeed, having to undergo any major disruption or breakdown.

In Pakistan, the supreme court of Pakistan constitutionally is the highest body of justice system and is responsible for regulating the legal justice system of the country. It is the final authority to which appeals can be filed and its judgment is considered constitutionally and legally absolute and final. No appeal can be filed against its decision and its verdict cannot be challenged. There are other lower courts namely provincial courts and then session courts which dispense justice at the lower level.

Historically, the architect of Judicial Activism was Chief Justice John Marshall of the United States. In two landmark cases, Marbury vs Madison and Mccullough vs Maryland, he laid the foundation of the doctrine of Judicial Review i.e. the judiciary should have the power to determine whether a law enacted by the legislative or an act done by the executive was constitutional or not. In the 1930’s, Roosevelt’s attempts to pack the supreme court with his favorites back fired. Pakistan’s judicial history is replete with cases like overturning of Maulvi Tamizuddin’s appeal, Dosso’s case and the Nusrat Bhutto case, where the judiciary bowed to the executive’s pressure. However, things changed after 1985. In the Saifullah case in 1988, in spite of the executive’s strong pressure, it was made mandatory that elections would be held on party basis. Later, the LHC and the SC both declared that the Junejo government was dissolved unconstitutionally.

By a very active interpretation of Article 17 of the Constitution, the Nawaz Sharif government was restored in 1993. Had the SC interpreted the article textually, the case should have been heard by a High Court at first instance.
However, it was in 1996 that two landmark cases changed Pakistan’s judicial landscape decisively. First, the Supreme Court, by repeated instructions to the effect, forced the government to promulgate the Legal Reforms Ordinance, 1996, which separated the judiciary from the executive at the lower level. This ordinance rectified judicial system in Pakistan, which had been tacitly supported by ever government in order to enjoy political clout.
Then in the path breaking “Judges Case” of March 29, 1996, the SC declared that the Chief Justice of Pakistan would have primacy in the appointment of judges to the superior judiciary.

The “consultation” with him by the executive, regarding the appointment of judges, would have to be “purposive, meaningful and consensual.” This case has effectively put an end to the executive practice of appointment of judges to the higher judiciary by over-riding the advice of the Chief Justice of Pakistan.
Justice Sajjad Ali Shah thus brought about a “one man judicial revolution” in the country. The Supreme Court judgment has once and for all rejected the concept of summary trials, and dealt a blow to the executive-sponsored moves to create a parallel judicial system.

In June 2005 Iftikhar Muhamamd Chaudhary became the Chief Justice of Pakistan who was suspended and sacked in 2007 due to corruption allegations by the then president of Pakistan, Pervez Musharaf. His removal gave birth to a movement in civil society including the lawyers, which culminated his restoration at the post of Chief justice of Pakistan from this incident judiciary become strong and from there rebirth of judiciary became. Now the justice system is Pakistan become as strong as much the Supreme Court disqualified Prime Minister Nawaz Sharif from holding public office in a landmark decision on the Panama Papers case. Justice Ejaz Afzal Khan, who had headed the apex court’s implementation bench following its April 20 order on the Panama Papers case, announced that the larger bench had unanimously deemed PM Sharif unfit for holding office and would also order an accountability court to open references against him and his family, and other respondents. Shortly after the order, the PM House issued a notification saying that Nawaz Sharif, despite having “strong reservations” on the SC’s verdict, has stepped down from his post as the premier. Reacting to the court’s order, a PML-N spokesperson said that the party will utilize all legal and constitutional means to contest the verdict.

The judgment, announced brings Sharif’s third term in power to an unceremonious end, roughly one year before the scheduled general elections which would have seen him become the first Pakistani prime minister to complete a full five-year term. Recently On April 26, 2018, a special tribunal of three members of the Islamabad High Court disqualified Khawaja Asif as a member of the parliament under Article 62 (1) (f) of the Constitution for failing to disclose his employment in an UAE business as a profession and the monthly salary he received. The decision also refers to the Panama Papers case, saying: “The Supreme Court did not disqualify the former Prime Minister [Nawaz Sharif] simply for having an ‘Iqama’ but for his disqualification was due to non-compliance disclosure of property, the celebration of an “Iqama” cannot be the basis for attracting Article 62 (1) (f)”. Pakistan opens the doors to new era of justice system.

The judiciary in Pakistan has undergone many changes over the years and is still being developed to administer justice effectively, in line with the general policy of the government towards its various sectors. In addition to the creation of courts and the enactment of laws, the introduction of electronic services has facilitated many aspects of the judicial process, with courts that can provide justice more quickly, to the extent that rapid commercial resolution and quality of service have been achieved become reality the rule.

Among the developments observed by the judiciary in recent years, is the diversity of cases. Specialized courts and special committees, such as JIT, have been established to deal with certain types of cases with unique characteristics. These developments go beyond the work of the courts and include the prosecution service and its services, especially online services. The developments include the work of lawyers and legal consultants. There has been a growing interest in regulating the legal profession in what seems to be a serious step towards the advancement of the profession given the importance of this vital sector and its influential role in the justice system.

The judiciary is one of the most important factors in the success of any country that aspires to attract investment and forge successful international relations. A fair and modern judicial system is needed to win the trust of the international community. Therefore, the responsibility for the development of the judiciary does not fall on any particular entity or department in the Pakistan and requires collective action by various entities to achieve the desired objective.

The efforts required to achieve that goal and to overcome the challenges of the next phase include all the Ministries specially Ministry of Law and Justice to put its efforts to make judicial system batter. It must be the duty of Law Ministry to Propose and implement amendments to the rules of civil and criminal procedure that would serve the interests of justice and the public good, taking into account the best practices that are not in conflict with the public order of the Islamic Republic of Pakistan and are consistent with rules of justice and equity. Operate a more convenient online service where online services are used, not only to register cases and file complaints, but also to create an online forum to listen to witnesses and experts from outside the Pakistan. It is very well known to everyone now that our Judiciary is a very strong pillar of Pakistan and will continue to grow because it is well known Maxim of Law “when there’s a will there’s a way”.


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