Pakistan’s judicial history is replete with instances where the judges kowtowed before the military dictators and exercising the infamous doctrine of necessity had legitimised many military coups.
Of late, this scenario has undergone a drastic change with judges becoming more assertive and have even taken head-on Pakistan’s most ‘holy cow’ – the military establishment.
So, it was no surprise that the supreme court took suo motu notice of the Imran Khan government’s handling of the COVID-19 crisis and expressed serious dissatisfaction over the lack of coherent policy in dealing with the pandemic.
Taking his first sou motu after assuming the top judicial post, chief justice Gulzar Ahmed not only directed his ire against Imran’s mishandling but also at the size of his government, which the five-member bench called ‘an army special advisors and ministers’.
The Supreme Court observed that Imran’s cabinet has become ineffective in the fight against the pandemic and called for the removal of Zafar Mirza, prime minister’s special advisor on health.
The chief justice even asked Attorney General Khalid Javed Khan why Mirza was not removed, who responded by saying removing his removal at this point and time would be disastrous and urged the apex court to leave the matter to the federal government. Although the court did not pass a written order on this, justice Gulzar came down heavily on 19 special advisors and more than 50 ministers in the Imran cabinet and said that that larger size of the cabinet means that the prime minister doesn’t know anything. He said that the advisors were given the status of a minister and without naming anyone he said there were allegations of corruption against some advisers and ministers. When the Attorney General prayed the court not to pass such remarks, justice Gulzar said he has been careful in his remarks and has used the word ‘allegations’. He said he does not doubt the honesty of Prime Minister Imran but whenever his government has faced such a crisis he has just changed the portfolio of ministers.
Expressing dismay over Imran’s failure to control coronavirus, the five-member bench said that there is a lack of leadership that could maintain unity in the country. The government is just calling in meetings whereas no work is being done on the ground, the chief justice added and asked the attorney general why a Parliament session is not being called in the prevailing situation.
Such remarks by the chief justice, which are not part of the judgement has again raised questions over the judicial outreach and ignited the old debate of judicial activism versus judicial restraint.
Senior Pakistani journalist Mohammed Mallick said: “We are living in the age of breaking news and courts should be very careful while passing such remarks as they are flashed 24×7 on TV channels and it can ruin the reputation of any person as nobody read what is written in the detailed judgement.”
Regarding the chief justice’s remarks over the eligibility of health adviser Mirza, Mallick said if the court has solid legal ground against him, then it has all the right to pass strictures. The court’s comment on his eligibility raises doubts over his financial propriety. This comment should be the part of the judgment but it was not and was flashed on TV channels all day.
“I think we should stick to an old saying that the judges should speak through their judgments and they should be very careful while taking sou motu notices,” Mallick said.
Najam Sethi, a senior Pakistan analyst, is the view that when it comes to public interest the judges should speak out their mind.
“The way the supreme court took to the government to task over its failure to chalk out concrete and effective policy reflected the frustration of the common man. The way judges ‘thunder’ in the courts have become part of the Pakistan judicial culture. However, while writing the judgment they show exemplary restraint.
Senior journalist and President of Press Association of Supreme Court Abdul Qayyum Siddiqui, called it supreme court’s ‘intervention in the domain of executive affairs’. He said it was not a good precedent to set, “this is purely an executive matter,” he said.
Siddiqui said that the supreme court should exercise judicial restraint instead of judicial activism in the current times of national crisis and added: “I agree with the attorney general Khalid Javed that removal of Mirza at this moment will be ‘disastrous’ for Pakistan.”
Matiullah Jan, who runs a YouTube channel, on legal issues, is of the opinion that the supreme court should not work as a government officer by issuing orders. It looked as if the supreme court is running the government, which is not the job of the apex court.
“Criticising the Imran Khan government is the job of the opposition, media, civil society, not of the supreme court. If the supreme court feels that the government is doing something which out of its preview under the constitution, then only it should intervene through its judgment citing relevant articles of the constitution and judicial precedence. It should speak through its judgement. Issuing orders can result in conflict between the institutions. This danger is very high while taking sou motu notices,” Matiullah said.
Former law minister Khalid Ranjha called the suo motu as ‘judicial activism’ and said that the chief justice’s first suo motu action does not come under the jurisdiction of Article 184(3) of the constitution of Pakistan ‘in the true sense’.
On the legal implication of justice Guzlar’s ‘verbal remarks’ to remove Mirza, he said: “The government is not obliged to follow the directives of Supreme Court, as the court has not issued an order in writing.”
Speaking on justice Gulzar’s remarks on the high number of advisers and ministers and removal of health adviser, Shibli Faraz, senator of the ruling Pakistan Tehreek-e-Insaf (PTI) and son of famous Urdu poet Ahmed Faraz, completely ruled out the sacking of the special health adviser Mirza by saying that he has been doing a great job and has been involved in the fight against COVID-19 from the very beginning.
“Removing him at the stage is out of the question,” he added.
On the number of ministers and advisers, Shibli said it is the prerogative of the political government. “The constitution gives this right to the prime minister and he can have any number of ministers or advisers he wants. The members of the Imran cabinet is as prescribed by the constitution, which is 11 per cent of the total strength of the national assembly,” he said, adding if someone wants to change this system, then there can be a debate on it.
Critics of Imran khan, on the other hand, say he is getting the taste of his own medicine.
As opposition leader, Imran had always criticised large cabinets of the previous governments and had vowed that if he comes to power his cabinet will be small and compact.
Talat Hussain, a senior journalist, who is not a big fan of sou motu action, said the history of sou motu notices in Pakistan is not even encouraging as they are seen as a major cause of the problem in the system. “The intention behind it might be good but its result has always adversely affected the governance,” he said.
The sou motu action by justice Gulzar has created problems for the present government as, on the one hand, the government will have to keep an eye on the supreme court’s observation and on other, take necessary measures to combat the pandemic, he said.
“Look at the irony. When the PTI was in opposition, any sou motu action against the government of the day was hailed by it. The prime minister and his party used to enthusiastically cheer such interventions when the previous government was at the receiving end of judicial overreach. In fact, it used to urge the courts to take more sou motu actions. Now, they (Imran Khan government) are facing the same situation,” Hussain said.
He said the relevant questions regarding the government’s ability and capacity to deal with this crisis, which were earlier part of the civil discourse, has now come under the radar of the supreme court.
Hasnaat Malik, the legal correspondent of an English language daily, tweeted: “It’s typical Iftikhar’s style to put govt under severe pressure by giving oral remarks for just media headlines. ‘As U sow so shall U reap’. PTI is biggest beneficiary of such judicial activism.PML N also got political gain from judicial activism. Both parties supported it.”
The court, before adjourning the hearing until next Monday, set aside the Punjab government’s order banning the intra-city, inter-district and inter-province movement of people by all means.
Former president Supreme Court Bar Association (SCBA) Aman Ullah Kanrani told the court that the Punjab government had banned the inter-province movement of people, causing hardship to the people.
The court observed that such an order could not be passed, as it constituted a violation of Article 15 of the Constitution, which gives the freedom of movement to every citizen.