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Editorial | Amid A Lethal Pandemic Another Era Of Judicial Activism Begins

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The rise of a strong and assertive judiciary in Pakistan has led to some important positive changes. But it has also created a pattern of what some see as judicial overreach. Or, at the very least, we can safely say that when assertive judicial authorities reach into the everyday workings of government, they leave themselves open to claims of ovvereach – even when the intent was very different.

There is no question that the government of Prime Minister Imran Khan has mishandled the country’s response to Covid-19 from the very start. Constant denialism and confusion over the lockdown have prevented Pakistan from forging a coordinated strategy to deal with the pandemic. It is also a matter of public record that the Pakistani military had to intervene so as to begin lockdowns throughout the country. And yet the Prime Minister and his advisors have persisted in singing tunes which fly in the face of global expert opinion on managing the pandemic.

Having said that, the question today is whether it is desirable for the judiciary to intervene so openly in executive and policy questions. Can we afford to continue the practices of previous hyper-active judicial authorities? Or dare we hope for a new era where institutions circumscribe their activity in accordance with constitutional and democratic norms?

Now that the Supreme Court has asked the Prime Minister to remove his Special Assistant for Health, the disquiet is not just from the ruling-party. In fact, the worries are shared by many in the opposition – given that they have, at various moments, been at the receiving end of similar judicial activism.

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In response to the Attorney-General Khalid Javed Khan’s concerns over this measure, the Chief Justice of Pakistan Gulzar Ahmed pointed out that the honourable court is very careful in passing its remarks. And this is, of course, true. Pakistan’s judges, especially at the level of the apex court, are thoroughly steeped in an understanding of the constitutional and legal mechanisms that underpin our system. When they do intervene in these matters, there is no doubt that they have carefully considered the matter and act with great restraint.

The problem is that this country has not had a stable democratic and constitutional order in place. Aside from the very obvious coups d’etat by generals, there have been numerous episodes of wrangling between institutions of state, be they elected or unelected. This unfortunate past and present has consequences for mutual confidence and harmony between institutions – especially when theys end up on opposite sides of an issue.

The unelected institutions, even when they sincerely believe themselves to be acting within their ambit and with all due restraint, can appear as overbearing. Historically, all encroachments have eventually ended up undermining the vitality of elected institutions. Sitting governments, be they on the federal or provincial level, feel an understandable amount of alarm when they see judicial intervention – even when it is justified.

What this means is that unelected institutions of state might have to operate with even more restraint in their interventions and signalling – at least until constitutional norms become fully established in the country’s body politic.

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The issue of asking for the PM’s Special Assistant Dr. Zafar Mirza to be removed from his post at this moment raises even more concerns among observers because the country is in the middle of its struggle against Covid-19. There are many who believe that continuity of policy and coherence is even more important than the rectification of errors.

It can only be hoped that any misgivings on the part of the federal government – or any other political fallout – from the honourable Supreme Court’s instructions does not result in any damage to Pakistan’s strategy to contain the Coronavirus outbreak.

Also, the Prime Minister and his party had enthusiastically cheered on such interventions by Justice Saqib Nisar when it was the previous government at the recieving end of judicial overreach. Hopefully they would reconsider that stance from the past.

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Naya Daur