Judicial activism on elegant retreat

There are clear signs that judicial activism that permeated the tenures of former CJPs Iftikhar Chaudhry and Saqib Nisar is now on elegant retreat, and for the right reasons. Even when their decisions made bold headlines and won instant public praise in sum total the quantity and quality of justice delivered by their courts remained shy of facing real challenges facing the country's judicial system. Not only did the case-pendency keep growing, the judiciary also appeared to be positioning itself as a replacement of other branches of government. Their weapon of choice was suo motu powers under Article 199 and Article 184(3) of the Constitution of Pakistan. Accepted, in fragile democracies there is some justification for expansive use of judicial role. But how much of that leverage can be applied the decision predicates on risk of stunting the growth of other executive branches. That the apex court had gone into construction of mega dams, for example, was a controversial step or development. And even when the apex court was within its constitutional mandate to enforce Fundamental Rights, their excessive use of suo motu power shifted focus of higher judiciary away from its principal responsibility that people get expeditious and inexpensive justice. No wonder then this lopsided interpretation of the Supreme Court's right to take suo motu notice doesn't sit well with the worldview of the incumbent of Pakistan's apex court, Chief Justice Asif Saeed Khosa. Two months is not a very long period in one's professional career, but for him it was, and in that short span of time he has, both through his observations and his judgements, conveyed the message that instead of poking nose in others affairs the judiciary would do its possible best to ensure that the aggrieved get justice at the earliest; the passage to the courts remains short and paved and that falsehood would be suicidal to one's case before the court.
But, as expected, draining the swamp is not that easy - it is a protected wetland spawning a variety of illegal and immoral practices and self-interests. Truth was an early victim at the hands of falsehood, particularly in criminal cases. But that would be no more the case. The Supreme Court has declared that presenting falsehood before trial courts in criminal cases will now be treated as perjury, entailing penal consequences. Falsehood at any stage of trial, owned up or denied later, would be treated as perjury. "Truth is the foundation of justice and justice is the core and bedrock of a civilised society; any compromise on truth amounts to a compromise on a society's future as a just, fair, and civilised society," says the Chief Justice. The court decreed that any witnesses found by a court to have resorted to deliberate falsehood on a material aspect "will, without any latitude, invariably be proceeded against for perjury."
Another development that is already a thorn in the side of the parties that flourish in lengthy court proceedings is a directive of the National Judicial Policy Making Committee (NJPMC) empowering police to decide applications/complaints regarding registration of FIRs. Earlier, justices of peace/sessions judges directly entertained citizens' applications filed under Sections 22-A and 22-B of Criminal Procedure Code (CrPC). The changeover is expected to checkmate enormous flow of frivolous complaints to courts which are already overburdened. If cutting out falsehood from court proceedings would help early decision-making, the NJPMC is expected to reduce the huge backlog. But, why lawyers protest this move there is no clear answer - a situation that makes one think that litigation for them is the more the merrier. And as this bench-bar tussle persists, it is the third-party, litigant, who suffers the most. He doesn't fail to reach the court on time, but barring a few exceptions is asked to come another day, because either his lawyer is busy in another court, or is on strike. Consequently, trials last for years and for generations. Now that judicial activism is behind us and we are hopefully on the threshold of an era of prosaic but real judicial activism the delivery of justice is expected to be expeditious and inexpensive. At the same time, a work is cut out for the government - it should recruit more judges because with present strength to deliver justice on time would remain an ever-receding mirage.