Volume 22 Issue 2, February 2018


Should the Judiciary play a role in the absence of the Executive?
There is an old saying ‘Nature abhors vacuum.” The Judiciary comes in to fill the vacuum created by the executive or, for that matter, any other pillar of the state, resulting in infringement of ‘ANY’ fundamental right of the people,. This gives rise to ‘A question of public importance’ and the superior Judiciary, in particular the Supreme Court, has the power to intervene. The constitution of Pakistan says, ‘Without prejudice to the provisions of the Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of part II is involved, have the power to make an order of the nature mentioned in the said Article.’ On the other hand Article 190 very clearly says, ‘All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court of Pakistan.’ Not in Pakistan but anywhere the democratic world where any of the state organs fail to come out with a solution impinging public interest, the Judiciary steps in. For instance, during the US presidential election between George W. Bush and Al Gore, in 2000, there was a dispute in vote counting in Florida and the United States had no solution. After an intense recount process, the United States Supreme Court decided in favour of Bush and he was declared the President-elect. Thus, since the state had no solution to the stalemate, the Judiciary stepped in to solve the issue. Concisely, you may say that wherever other organs of the state fail to do what the constitution requires them to do, the Judiciary has a constitutional duty to intervene in the greatest interest of the nation and settle the issue. Conceptually, the Judiciary in any civilized country, besides being one of the organs of the state, also has the residuary/spare wheel function. So the Judiciary definitely has a role to play in default of the executive.

Do the three pillars of the state function properly in Pakistan?
Besides Judiciary, had the other pillars of the state been functioning properly, the Supreme Court would not have been taking suo moto actions or hearing constitutional petitions, touching public interest. Let me quote you some instances from personal experience. During my tenure as the Chief Justice of the Sindh High Court, industrial, commercial and residential sewerage was polluting our seashore. I called the MD Sewerage and Water Board and other officials, including the Sindh Chief Secretary and asked them to make arrangements to treat water flowing from Lyari, Malir River and Nehr-i-Khayyam, instead of dumping the water into the sea, endangering marine life. I asked them to study the indigenous water treatment devices designed by the Karachi University. Let me recall here that when Mr. Z A. Nizami was DG of the KDA, he showed me two bottles of water and said, ‘One of these contains natural water and the other treated water. Can you identify pure water?’

I couldn’t. On another occasion, I learned that during Ramzan, office-goers were facing the problem of acute traffic jams and used to reach home, at times, after Iftar. I asked the traffic police authorities to make arrangements to streamline the traffic and they did it with the desired result. I was very particular about the public complaints and therefore, nominated junior judges sitting in Division Benches (DBs) to review the complaints and forward the same to me. The system worked so well that we used to receive about 100 complaints daily. It goes without saying that when the other pillars of the state fail to deliver, people look towards the Judiciary for redressal of their grievances. With a more active and relief-giving Judiciary, more people take recourse to the law.

Should the Judiciary ensure the rule of law in Pakistan?
Yes. There is no doubt that in a democratic setup, the people should elect the members of the Parliament, the only august lawmaking body entrusted with the task of making the Constitution. But then, it is only the Supreme Court which has the power to interpret the word of the Constitution. In fact, the Constitution is what the Supreme Court says it is! The Supreme Court is the highest tribunal in the country for all cases and controversies arising under the Constitution or law. As the final arbiter of law, the Court is charged to ensure rule of law in Pakistan and guaranteeing people of Pakistan the promise of equal justice under the law. Thereby, the court also functions as guardian and protector of the Constitution.

Should frequent use be made of suo moto action?
There are two essential conditions for invoking the jurisdiction of the Supreme Court of Pakistan under Article 184(3) of the Constitution. The first condition is that subject matter of the petition under this Article must be of public importance, whereas the second is that it must relate to the enforcement of any of the fundamental rights conferred by Part-II, Chapter-1 of the Constitution. The recent example is that of Chief Justice Saqib Nisar, who, while hearing a suo moto notice about the poor state of public hospitals in Punjab, warned that he would close down all the projects, including Orange Line Metro Train, if the health and education sectors were not improved. A three-member bench, headed by the chief justice and comprising Justice Manzoor Ahmad Malik and Justice Ijazul Ahsan, was hearing different issues of public welfare at the Supreme Court Lahore Registry. In a country where there is frequent infringement of fundamental rights, you cannot avoid recurring use of suo moto actions. The Supreme Court has all the right to use suo moto power whenever it finds that the fundamental rights of the people are being violated.

Is the superior Judiciary of Pakistan dispensing justice in a wholly fair manner?
There should not be any doubt about it. However, some decisions such as the Hudaibiya Paper Mills case, exonerating the Sharifs, where the court declined to reopen the matter largely on technicalities, raise question marks.

Is there a need for all tiers of the Judiciary to reform themselves as well, especially the lower tiers?
Yes. But where from the finance will come? The only organ of the state which is abysmally unstaffed is the judicial limb. We are a feudal setup and 99 per cent of the people are neither represented in the local bodies nor in the provincial assemblies or in Parliament. The sardars and vaderas would rather dispense justice themselves in preference to having any court around. However, this too will pass!

The interviewer is a member of the staff.    
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