Two eminent judges of the Supreme Court (SC) have in their respective addresses at a conference in Karachi the other day uttered words of profound wisdom that should make all stakeholders in the future of the country sit up and take notice. First, Justice Qazi Faez Isa, who is, these days, facing a reference in the Supreme Judicial Council that has been challenged in a number of petitions before the SC. The general perception is that the powers-that-be did not like the judgement Justice Isa delivered in the case of the Tehreek-i-Labbaik dharna (sit-in) in Islamabad, carrying as it did strictures against powerful institutions of the establishment. It is a tragic and continuing irony of our life as a country that bold and upright people who do not shirk from speaking truth to power are targeted instead of being appreciated. Justice Isa did not disappoint in underlining and highlighting what is wrong in our judicial system, other state institutions, or the constitutional limits within which they are expected to operate. On the judiciary, Justice Isa said it has the authority to stop individuals or institutions from transgressing fundamental rights according to their whims. He quoted from history, particularly the wrenching breakaway of East Pakistan to re-emerge as Bangladesh, arguing that when institutions overstep their domain, not only are the basic rights of the people violated, it also weakened the country. Continuing, he explained that when the government of one person was imposed through martial law and democratic principles ignored, even thousands of military personnel could not save the country from being bisected. Not only that, the Hamoodur Rehman Commission Report had not been released to date, ensuring no lessons were learnt from that episode. The judiciary too, Justice Isa continued, should not overstep its domain and used the example of the suo motu proceedings on an unknown written complaint to the SC regarding the imposition of six different taxes on mobile phones, which was initially stayed by the SC, causing thereby a Rs 100 billion loss to the exchequer after the SC concluded it could not consider the matter because it did not fall within the purview of fundamental rights under Article 184(3). Justice Isa also touched frankly on the 'disappearance' from time to time of some TV channels (and newspapers) and the strict censorship that had been imposed on the media. A free judiciary and a free media, he argued, were necessary foundations for any democracy.
The following day, Justice Maqbool Baqar of the SC further dilated on these issues of constitutional, legal and institutional nature. He advised the judiciary to isolate itself from all inappropriate connections in order to ensure and maintain its independence. He also argued, that judges should not, however, live in ivory towers and should acquaint themselves with the ground realities of our society, particularly the condition of the poor and indigent. Only then, he continued, could there be hope for a people-oriented judicial system. The judiciary, he argued, had to earn the respect and confidence of the people. Judicial independence was a sine qua non for safeguarding the democratic system and ensuring against the violation of human rights. Judges' appointments therefore must be guided by objective criteria. Last but not least, Justice Baqar drew attention to the limits of judicial/legal intervention in political decisions by the legislative and executive branches of the state.
Both learned judges of the SC have laid down the parameters of the judiciary's role, functioning, and limitations drawn by the constitution and law. They have also pointed to the unexpected consequences and negative effects of judicial hyper activism. The boundaries within which state institutions must function under the trichotomy of our constitutional construct have been demarcated by the honourable judges. In an ideal world, the powers-that-be as well as all stakeholders should have paid great attention to the wisdom enfolded in the honourable justices' remarks. Unfortunately though, our present trends at the level of state and society do not inspire confidence that the judges' pertinent ideas will serve as a wake-up call to all those who matter.