Pakistan Faces Judicial Activism Against Executive

The tension between the executive and the judiciary seems to be declining after meeting between the prime minister and the chief justice. In accordance with the expectations, the executive have acceded to all demands of the judiciary and thus the ongoing arguments in the Supreme Court on the matter would perhaps now come to an end.
In view of many people, the executive had perhaps no other option because in a case wherein the Supreme Court is petitioner as well as jury, the chances of the acceptance of the government's viewpoint were very slight.

Appointment of Judges
During this confrontation, the numerous loyalists of the chief justice spread among the lawyers and in the courts also demonstrated their full strength. Although the Supreme Court had cancelled the official notification of the appointment of judges the same evening, the lawyers tried to observe strike throughout the country and in this effort, the judiciary also took part in performance of the constitutional duty of further strengthening the relations between the bar and the bench by extending full cooperation to the loyalists of the chief justice.
According to BBC (British Broadcasting Corporation) reports, a group of lawyers appeared in courts at various places in Sindh opposing the boycott call but the judges did not sit in the courts. The executive committee of the Lahore High Court, in a meeting chaired by Chief Justice Khawaja Muhammad Sharif, decided to hear the cases of only emergent and immediate nature and instructions were issued to hear such cases in the chambers of the judges only. The rest of the cases were sacrificed for the loyalists of the chief justice.
It is pertinent to mention that the latest confrontation between the judiciary and the executive started with the elevation of Justice Khwaja Sharif to the Supreme Court and he had immediately refused to accept it. Thus, he had the status of a major party to the issue.

Institutional Strength
The foundation for rising up of the judiciary and lawyers as an institutional strength was laid during the movement that started in reaction to the confrontation between the judiciary and Pervez Musharraf in 2007. This institutional strength has, however, reached at this stage under influence of the desire of the judiciary to become a powerful party in the decisions on state affairs instead of gaining strength as an impartial institution.
During the movement for restoration of the judiciary in the Pervez Musharraf era, the leader of the movement, Chaudhry Aitzaz Ahsan, often used to say in his speeches that if the military is proud of its khaki uniform, we (the lawyers who wear black coats) are not less than anybody else. Thus, the lawyers, who did not refrain from torturing their opponents, continued increasing their street power. In the meantime, arrangements were made, under the slogans of the constitution duty of cooperation between the bar and the bench, for the lawyer leaders and the judiciary embracing each other. Perhaps, the two sides found this hug so much delightful that instead of separating, they now prefer to constantly stay attached to each other. Top institutions now also seem helpless in the face of the new power that emerged because of this prolonged hugging.

Restoration of Judiciary
Expressing his views about the 14 February strike of lawyers, Chaudhry Aitzaz Ahsan said that in principle he was opposed to it but he did not appear in the court on that day because a decision about the strike was taken by majority of the lawyers. It means that he can go to the extreme in opposing the majority decisions of his party for adhering to his principles and can also start a long march even against his party's government for upholding the principles. But despite showing his opposition before the power that emerged as an outcome of hugging between the judiciary and lawyers, he finds himself helpless before the majority decision. The snake charmers in the ranks of lawyers have set off such flames that nobody is now safe from their heat.
During the movement for the restoration of the judiciary under the Musharraf rule, the leaders of the movement often argued that new PCO (Provisional Constitution Order) judges led by Chief Justice Abdul Hameed Dogar are product of a dictator so the court would not be able to deliver justice in the presence of such partial judges. Those judges are gone but perhaps the judges having the same opinion could be appointed to fill the seats vacated by them.
Perhaps, this is not by chance that the Supreme Court full bench gives a unanimous decision and even a single judge does not oppose that decision. Just like the military discipline demands that every command of the chief justice is taken as the final, our independent judiciary too would possibly not disappoint its loyalists. With the mutual efforts of the bar and the bench, the power of the judiciary is now taking a new shape. Who says our institutions lack the discipline?

Opposition to Presidential Notification
Whereas the majority of lawyers opposed the first presidential notification for appointment of judges, some legal snake charmers touching the extremes in opposition to the notification accused the president of even the contempt of court and treason. Over many similar other steps of the contempt of court, however, they never issued a statement. According to one of our friends, a contempt of court case for the independence of an independent judiciary is pending since long and enjoys the status of a litmus test for providing the independence of the judiciary.
During the Pervez Musharraf era, Fakharuddin G. Ibrahim had filed an application in a court for return of Nawaz Sharif. The Supreme Court had ruled that Nawaz Sharif can return to the country and no hurdle is creating in the way of his comeback. All of us had, however, seen that in spite of the judiciary being independent during the Musharraf era, the former prime minister of the country was bundled into an aircraft and sent back. The sound of this power strike on the judiciary is still echoing. Now, the judiciary can exhibit its independence by giving a verdict in that case of the contempt of court.

Lacking Independence of Judiciary
Currently, Pakistan has a democratic government. The judiciary is independent and powerful. The legal snake charmers are vigorously playing their pungi (a wind instrument used by snake charmers). The petitioner (Nawaz Sharif) is also in the country and Fakhruddin G. Ibrahim is also present.
The government officials who had committed contempt of court by sending Nawaz Sharif back to Saudi Arabia are also there and the chief justice is also the same. But the independent judiciary is missing from this case in spite of having independence.