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Thursday, February 15, 2024

Judicial activism and active Judicialism, Chief Justice Pakistan schools critics

Chief Justice of Pakistan has made it clear that no outsider can dictate the court. SC is practicing active judicialism, not judicial activism, he told his critics.

Chief Justice of Pakistan (CJP) Asif Saeed Khosa explained his idea of “Active Judicialism” and offered his comments on what he referred to as “lopsided process of accountability”. The CJP urged the legal community to take responsibility and play its due role in the institution-building process.

Justice Khosa was speaking at the opening ceremony of the new judicial year 2019-20. The event shown live at all registries of the Supreme Court through video link was also addressed by Attorney General Anwar Mansoor, Pakistan Bar Council vice-chairman Syed Amjad Shah and Supreme Court Bar Association president Amanullah Kanrani.

The CJP noted that there was a perception that the process of accountability in the country is aimed at political engineering. “We, as a relevant organ of the state, also feel that growing perception, that the process of accountability being pursued in the country at present is lopsided and is a part of political engineering is a dangerous perception and some remedial steps need to be taken urgently so that the process does not lose credibility,” the CJP said.

He highlighted the significance of strong institutions in a democracy and also noted what happens if institutions don’t perform as per their prescribed standards. “As an important and independent organ of the state responsible for safeguarding the constitutional ethos of the country, we feel that such loss of political space in governance may not augur well for the future of the country as a constitutional democracy,” the chief justice feared.

It must be appreciated by all concerned that a voice suppressed or an opinion curbed generates frustration, which gives rise to discontent and increasing discontent poses a serious threat to the democratic system itself.

Moreover, the CJP also shed light on the importance of legal morality prevailing in the country. He emphasized that when ambiguity overshadows the principles of fairness and impartiality, the democratic order comes under threat. “The recovery of the stolen wealth of the citizenry is a noble cause and it must be legitimately and legally pursued where it is due.

But if in the process the constitutional and legal morality of society and the recognized standards of fairness and impartiality are compromised then retrieval of the lost constitutional and legal morality may pose an even bigger challenge to society at large in the days to come,” he added.

Freedom of Speech

At the same time, the chief justice noted that voices are being raised about the muzzling of the print and electronic media and suppression of dissent. “It must be appreciated by all concerned that a voice suppressed or an opinion curbed generates frustration, which gives rise to discontent and increasing discontent poses a serious threat to the democratic system itself.” Recently, some journalists and television channels claimed to have been approached some “powerful men” to not on-air some content which was apparently critical of the establishment.

On Suo Motu

About suo motu, the CJP said he realized that a section of society was unhappy over the fact that in the last few months the apex court had not shown much interest in exhibiting judicial activism and had been slow in taking suo motu action over issues where that section of society so demanded.

That section of the society might remember that only a few months ago they were highly critical of such an enterprise, he added. “We realize that criticism of this court over-exercising restraint in some controversial and contentious matters may be far safer and less harmful than its criticism over imprudent and undue interventions in such matters,” he observed.

Read more: Chief Justice’ Suo Moto exercise is different from Iftikhar Chaudhry’s impulsive anger

Taking suo motu action on the demand of some persons, the CJP explained, might constitute dictated exercise of jurisdiction whereas that very section otherwise believed that this court should never act at the bidding or demand of any outsider because acting on that basis militated against independence of this court.

He said the apex court would take suo motu notice of a matter only when it felt the necessity or utility for it and not when it was coaxed in that regard by outsiders. “At present, this court is practicing judicial activism of a different kind. Instead of judicial activism, it is practicing active judicialism,” the chief justice said.

Currently, 1.78 million cases are pending before all courts and tribunals in the country, whereas at the end of the last week the total pendency of cases before the apex court was 41,702.