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In the case of Darshan Masih, in 1990 the Supreme Court intervened and ordered improvements in the working conditions and services of brick kiln workers. Thereafter the court had a long list of cases pertaining to jurisdiction and public interest litigation.
After October 1999, when the army took control of the civilian administration, and after the removal of five senior judges of the Supreme Court in January 2000, the court grew docile and inactive. Most of the decisions of that era were politically motivated and in favor of military rule.
The three former chief justices were not inclined to intervene in matters of public importance and therefore this jurisdiction remained dormant till July 2005, when the present Chief Justice Iftikhar Muhammad Chaudhry took over. He began taking action on public complaints and incidents brought to public notice through press reports. Some famous cases which brought the wrath of the present government included the privatization of Pakistan's largest steel mill, missing persons cases, land scams in Islamabad, illegal constructions in Karachi and Lahore, and many more.
On March 9 this year the present chief justice was suspended from office and once again this jurisdiction came to a standstill. The 13 judges created a petition calling into question the illegal ouster of the chief justice. His suspension continued till July 20, when the court ordered the chief justice's position restored and the action against him declared invalid.
This proved a new beginning for judicial activism in Pakistan, and would be termed a milestone in judicial history. Indeed, it will contribute toward the development of rule of law and the independence of the judiciary, provided the same spirit is kept alive.
One of the main attacks from the government side before the Supreme Court in the matter of the chief justice concerned its jurisdiction under Article 184(3), which is the main source of judicial activism. All 13 judges held that the Supreme Court had jurisdiction to consider the legality or otherwise of the presidential reference and that Article 211 did not restrict their jurisdiction. The detailed reasoning behind this decision is still awaited, however.
Chaudhry, after returning to office, took up where he had left off and once again activated the Human Rights Cell in the Supreme Court. According to a reasonable estimate, now hundreds of applications are being received in this cell from people of different walks of life.
The chief justice once again took up cases of missing persons, and in the last week a full bench headed by the Chaudhry warned the director general of the Federal Investigating Agency to produce detainees the agency had arrested and handed over to a military agency. The inspector general of police for Islamabad was called to court to apprehend the director general in case he failed to produce the detainees at the next hearing.
Accordingly, on Aug. 21 three detainees were produced. One was in very bad shape and was immediately admitted to a hospital in Islamabad. All three had been under military detention.
Another historic move came on Aug. 24 when a seven-member bench of the Supreme Court, headed by Chaudhry, declared that former Prime Minister Nawaz Sharif and his brother Shahbaz Sharif were entitled to return to Pakistan from exile, and directed provincial and federal governments as well as all agencies not to restrain them from entering the country. At the same time the Supreme Court declared that this was a case of public importance touching on the fundamental rights of a citizen.
This court order overruled an earlier decision by three judges headed by former Chief Justice Nazim Hussain Siddiqui, who had dismissed a petition from Shahbaz Sharif on the grounds that it did not involve a matter of public importance. This decision has made political activists more vibrant and enthusiast, as the return of the Sharif brothers will raise the political temperature in the country, which may not be a good omen for the ruling party.
Why is judicial activism in third world countries inevitable? Unlike in developed countries, in parts of the world where a majority of the time the army has ruled the people, democratic institutions are weak, illiteracy and poverty are high, a corrupt bureaucracy and heavy military budgets have crippled the economy. It cannot be ignored that such a system gives rise to political corruption and opportunism. At best, one institution remains intact in these circumstances -- that is the judiciary. It is for this reason that Superior Court judges in third world countries must be conscious of public causes and more responsive. According to a judge of the Indian Supreme Court, "It is the inner strength of a judge that ensures the independence of the judiciary."
People are awaiting the outcome of a challenge to the president in uniform; his right to be re-elected as president by the outgoing Parliament will come up before the Supreme Court on Sept. 17. It is the wish of the nation that the Supreme Court should act in a manner to ensure free and fair elections, a smooth transfer of power and the full restoration of civilian rule.
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(Rasheed A. Razvi is a lawyer who served as a judge in the Sindh High Court until 2000, when he declined to renew his oath. He has served as president of the Karachi Bar Association and vice chairman of the Sindh Bar Council. He is a member of the Executive Committee of the Pakistan Bar Council and was elected its vice chairman in 2002. ©Copyright Rasheed A. Razvi.)
