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Towards a pragmatic judiciary

 

By Imtiaz Gul

The Express Tribune, April 23, 2014

 

Chief Justice of Pakistan (CJP) Tassaduq Hussain Jillani seems to be gradually diluting what critics have often derided and dismissed as the ‘overbearing influence’ of his predecessor Justice Iftikhar Chaudhry. In several recent speeches, CJP Jillani has underscored the critical importance of the role the judiciary can play in promoting a culture of tolerance, inclusion, protection of fundamental rights of all citizens, check on the arbitrariness of the rulers and adherence to law in Pakistan.

“The judiciary has a role to play by the effective enforcement of the law because we believe that it is the law that liberates an individual, a society or a nation. The judiciary, through its verdicts, can also promote the values of trust, tolerance, and of protecting minorities and the weaker sections of the society,” he said while addressing the inaugural session of International Judicial Conference 2014 on April 18.

The chief justice admitted that Pakistan, like other transitional democracies, has had its share of societal conflicts, reflecting the sectarian, racial, ethnic and political divides, which in his view led to violence, including assault on minorities’ rights in the country.

“Protection of minorities is not only amongst the Principles of Policy expressed in our Constitution – and, therefore a legal duty for us as Pakistanis – but is also a universal value and, more importantly, an integral pillar of Islam,” he said.

The SC’s call deserves a dispassionate consideration by all and is very much in sync with all those emphasising the need for indiscriminate adherence to and enforcement of the law. It is even more pressing in view of the over 8,000 international conventions and charters that Pakistan is signatory to, including Unesco’s ‘principles on tolerance’ that Pakistan adopted in 1995. Human rights watchdogs, advocacy groups and networks such as HRCP, REAT, CRM, HRW, too keep reminding Pakistan of its obligations in human rights, and particularly issues of tolerance as well as inclusion of all citizens in socio-political economy.

Respect for international conventions on transparency, accountability, anti-corruption and commitment to best practices, therefore, is a sort of automatic international obligation and not a matter of choice for an individual state.

Interestingly, the chief justice also underscored the need to define appropriate limits for the exercise of its jurisdiction suo motuunder Article 184(3).

“The Supreme Court needs to ensure that in its zeal to do good, it does not neglect to define appropriate limits for the exercise of its jurisdiction under Article 184(3).

“Anything short of that would be tantamount to encouraging frivolous and motivated petitions and subverting the purpose of Article 199, which would in turn negate the underlying intention and rationale of Article 184(3),” he added.

It was most probably in this context during the same conference that former State Bank of Pakistan (SBP) governor Dr Ishrat Hussain minced no words in acknowledging the SC’s achievements while reminding the senior judges of the roadblocks that the suo motuunder Article 184(3) had created in the way of business.

“The suo motu actions of Supreme Court did a great deal in establishing a new equilibrium between the executive, the parliament and the judiciary, (yet) with all due apologies, the country’s risk profile, that was already quite high, has been elevated with the addition of litigation risk (because of the increased tendency by ‘aggrieved’ parties to approach the senior courts),” Dr Hussain said.

Dr Hussain referred to many actions and decisions taken by the executive branch, which were challenged as discriminatory by one party or the other, and which indirectly vitiated the environment for conducting business activities.

“Even if the investors and businesses cross all the different hurdles imposed by the federal, provincial and local governments, they are now faced with an additional constraint that adds to the uncertainty and unpredictability of investing and doing business in Pakistan,” he said, drawing the judges’ attention to the issues arising out of the court’s activism.

One would hope that the judiciary under the CJP emerges as the real guardian of fundamental rights as well as an epitome for an across-the-board rule of law. Justice Jillani’s remarks during hearings and his statements on various occasions provide clear indications of a conscious, but gradual departure from the activism of the past into a guarded pragmatism focused on realigning the judiciary’s role as an essential pillar for enforcing the rule of law as laid out in the Constitution.

It was no surprise, therefore, that a major question that resonated during the conference was that if the ruling elites do not follow rules and regulations, why institute them at all? If the elites subvert and circumvent the principles of merit for the sake of kith and kin, why not challenge them?

Imtiaz Gul is the executive director of the independent Centre for Research and Security Studies

Email: imtiaz@crss.pk