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Saqib Nisar took judicial overreaches to a whole new level

On 17th January, 2019, judicial regime of Chief Justice Saqib Nisar came to an end. His tenure lasted for 748 days in the office and was marked by judicial overreach, utter absence of judicial restraint, lack of institutional identity and limits, visits to hospitals, symposiums on Dams and Population Control, condescending behavior towards his own (I am particularly referring to that incident where he insulted a Session court Judge in front of media) and other state Institutions, hence undermining civilian authority.

In Greek mythology, we come across personification of abstract concepts where Themis is the personification of justice, goddess of wisdom and good counsel and the interpreter of Gods’ will. The ability to foresee future made Themis rise to the status of ‘Oracle of Delphi’ later established her as goddess of divine justice. The blindfolded goddess of Divine justice with a bronze sword in her right hand and scales of justice in her left, symbolizes impartiality, justice and ability to mete out punishment. But Saqib Nisar was everything Themis symbolizes. Good riddance, if I may say so.

Problem with most law profession inductees is that they are not sensitive to administrative structure and its limitation where on the other hand judges of lower courts have better understanding on the matter but they rarely make it to Supreme Court

Mian Saqib Nisar was a law profession inductee in Lahore High Court and the problem with most law profession inductees is that they are not sensitive to administrative structure and its limitation where on the other hand judges of lower courts have better understanding on the matter but they rarely make it to Supreme Court and are usually exhausted in High Court or even lower courts owing to age barriers.

Where Chief Justice Saqib Nisar failed miserably was his ability to balance between two judicial approaches: Judicial activism and Judicial restraint. Labelling him as a judicial activist would be an understatement. He took judicial overreach to a whole new level and the damage he incurred on our democratic system and economy is beyond measure. Judicial populism that started with Iftikhar Muhammad Choudhary reached its epitome in Saqib Nisar’s regime.

Former President of Supreme Court Bar Association Ali Ahmed Kurd and leader of Lawyers’ Movement in a telephonic conversation said that:’ The damage Saqib Nisar has incurred on reputation and highest traditions of the institution of Supreme Court will take decades to undo.’

Article 184-3 of the Constitution of Islamic Republic of Pakistan states that:’ Without prejudice to the provisions of article 199, the Supreme Court, if it considers that a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said article.’

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After 18th Amendment and particularly after the fall of article 58-2B, article 184-3 became the new blue eyed boy of Pakistan’s deep state. Though historically, whenever article 184-3 has been invoked it had negative impact on civilian authority either because of inefficiency of civilian governments or unnecessary judicial activism. Where in other cases this article has one way or the other helped either materialize or to bring them closer to their distant objectives of deep state.

What’s greatly disappointing is that there was no resistance from the fellow Honorable Judges of Supreme Court of Pakistan when CJ Nisar’s judicial demeanor was way out of line of Constitution and highest traditions of Supreme Court.

Just to give you perspective regarding the precedence of above stated article, Begum Nusrat Bhutto on 20th September 1977 filed a constitutional petition in SC under 184-3 against Chief Martial Administrator General Zia ul Haq. Petition questioned his authority as Army Chief to promulgate martial martial law and illegal detention of her husband and then Prime Minister of Pakistan Zulfiqar Ai Bhutto with 10 other party leaders after the Coup of 1977.The petition was admitted for hearing, later dismissed the petition and said that it was not maintainable. Here once again genie (Doctrine of Necessity) let lose by Justice Munir for the very first time in Maulvi Tameezud Din vs The State case was applied to render the petition unmaintainable.

What’s greatly disappointing is that there was no resistance from the fellow Honorable Judges of Supreme Court of Pakistan when CJ Nisar’s judicial demeanor was way out of line of Constitution and highest traditions of Supreme Court. No one during 748 odd days in the office was able to challenge or reorient the greatly unbalanced set of scales. If someone could have resisted or had the power to resist Judicial Overreach in the present state structure of Pakistan it was the Supreme Court itself.

Executive tainted with corruption charges and parliament in contemporary quasi military state structure had not much room to push Supreme Court for intra institutional reforms. PPP’s stalwart Former Foreign Minister of Pakistan and MNA Hina Rabbani Khar in a telephonic conversation said on the matter that:’ Every institution needs to wage Jihad within its orbit.

Around 1.8 million cases are pending in Pakistani courts where approximately 40,000 cases are pending in the Supreme Court of Pakistan. To deal with the question of pendency outside the ambit of Supreme Court and with little room that Parliament has or is left with. Parliament may discuss giving right of appeal in cases taken up under article 184-3 where scope of aforementioned article should be discussed and be curtailed if possible.

“If I as a foreign minister of Pakistan mingled in the affairs of finance ministry for instance, I would have done a disservice to the cause of Foreign as well as Finance Ministry. Every institution has to inspect its orbit of responsibility and act with in it. As far as Judiciary is concerned biggest problem right now is the pendency where PPP sees pendency as an egalitarian problem as both rich and poor suffer from it.”

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Around 1.8 million cases are pending in Pakistani courts where approximately 40,000 cases are pending in the Supreme Court of Pakistan. To deal with the question of pendency outside the ambit of Supreme Court and with little room that Parliament has or is left with. Parliament may discuss giving right of appeal in cases taken up under article 184-3 where scope of aforementioned article should be discussed and be curtailed if possible.

For that a Constitutional amendment would be required which under present circumstances seems rather impossible and secondly opposition would love to see Imran Khan fall on his own sword instead of helping or pushing him for a constitutional amendment that restores balance of power.
But in the long run political class will have to unite and tread this path which will not only help the new Chief Justice of Pakistan Honorable Asif Saeed Khosa or any upcoming Chief Justice to tackle with the problem of pendency but also help the restore the balance that his predecessor Saqib Nisar had disturbed in the long run.

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