Islamabad, Pakistan: It was anticipated that after the retirement of former Chief Justice Umar Ata Bandial, the Judicialisation started by former Chief Justice Iftikhar Muhammad Chaudhary in the recent past and adopted by former Chief Justice Mian Saqib Nisar, former Chief Justice Asif Saeed Khan Khosa and former Chief Justice Gulzar Ahmed would come to an end and the Executives would allow to work peacefully. However, it looks like it will take years to come for Executives to reclaim their constitutional space that had been encroached on by the above-mentioned judicial activists.
The recent news coming out of the Supreme Court indicates that neither executives are empowered to send illegally residing foreigners out of Pakistan nor they can take any action against anybody who got involved in the May 9, 2023 mutiny against the state.
Former Chief Justice Umar Ata Bandial wanted to “teach a lesson” to those who dismantled “Project Imran” so his intervention in administrative subjects could psychologically be justified. Still, it appears the last 10 years of judicial activism now run in the system. The five-membered bench’s decision against the trial of civilians who were involved in the May 9 mutiny in military courts was an expected decision although there had been over 30 trials of civilians in military courts in the recent past. This decision awaits appeal by the Federation but the trial process is in doll-drums. Now, another important issue has been taken by the three-membered bench that is related to sending illegally residing foreigners out of Pakistan.
On November 2, 2023, former PPP senator Farhatullah Babar filed a petition in the Supreme Court, seeking suo motu against the caretaker government’s policies of deportation of illegally residing foreigners claiming that interim government has no mandate to formulate such a policy against “illegal residents and asylum seekers” living in the country for decades. He claims that since illegally residing foreigners have been living for decades, they should be allowed to live for all times to come. His justification means that if an illegal act goes on for decades, it automatically becomes legal. He further claimed that no provision of law permits such mass deportation without a “robust mechanism” of differentiating between refugees and birthright citizens. This is another strange plea that “mass deportation” of illegal foreigners is illegal. So should it be in small groups? is an interesting question to be answered by the court. Moreover, what kind of “robust mechanism” is needed to throw illegal foreigners out of the country is another factor in his plea. Now the bench comprising Justice Yahya Afridi, Justice Sardar Tariq, and Justice Ayesha Malik have fixed the hearing of the case on November 28, 2023. The state of Pakistan believes that its both decisions (trial of civilians in military courts and deporting illegal foreigners) were in accordance with the law and the constitution. Since the case is in court and a sub-judice matter, further commenting may not be appropriate. However, it is surprising that a case that is entirely the administrative prerogative of the government has once again been accepted for hearing although an administrative decision was taken after the approval of the National Security Council and the Federal Cabinet.
In the past, judicial interference in executive decision-making over important matters related to national security, economy, and governance has caused enormous impairment to Pakistan. Whether it is the Riko Dek case, the Pakistan Steel Mills case, the payment of 190 million pounds by England’s NC to Pakistan, the Dam Fund, and the restrictions on the powers of Parliament on the Practice and Procedure Bill, all judicial interventions left administrative and economic cost behind them and the intervention of courts in the privatization process is already hampering the national exchequer by every passing day.
If we talk about the deportation of illegal foreigners, this case would be an interesting one because neighboring Iran has expelled millions of illegal Afghans, similarly, all European countries have expelled illegal people, and even in Europe, courts do not accept human rights clause over the issue of residing illegally and accept the authority of administration for instant expulsion of the person living illegally in the country.
Several researches about the recent judicial activism in Pakistan indicate that the superior judiciary has moved beyond just arbitrating political disputes to playing a role of its own within the political system: constraining the authority and vetoing the policies and actions of civilian institutions in order to shape politics and policies in line with its own preferences. It has been observed that higher judiciary frequently opposed, constrained, and undermined elected and unelected institutions and started challenging civilian and military governments in the last two decades. One of the reasons for such activism and assertive courts is the deeply divided and politically fragmented political and administrative structure of Pakistan and this situation has not happened abruptly.
Hanging one prime minister and disqualifying two elected prime ministers and then winning a battle against Gen Musharraf created a sense of superiority among the higher judiciary that in the past just acted as a second fiddle to the military establishment but after sending Musharraf home, higher judiciary realized its power of intervention in all institutions. Since then, overstepping Executives has become a new norm by the judiciary in the past and courts progressively carved an expansive institutional role for themselves.
The recent past indicates that higher judiciary started operations at even micro-level and the prime examples can be several actions of former Chief Justices including former Chief Justice Mian Saqib Nisar, former Chief Justice Asif Saeed Khan Khosa, and former Chief Justice Gulzar Ahmed who took notice of the federal and provincial government’s performance in dealing with the grassroots level administrative moves. In Pakistan, no such research has been conducted on how judges play a prominent role in the administrative issues and cost of judicialisation of the state’s policies on the state’s political as well as administrative structure. In India, several law institutes documented the social, administrative, and economic cost of “judicial Activism” although Indian Judicial activism emerged as a powerful mechanism of social change in India and evolved into what has come to be known as Public Interest Litigation to empower ordinary citizens to write a letter and draw the attention of the apex court but shortcomings and impact of this activism is well-documented in India. However, in Pakistan, the target of judicialization had mostly been the Cabinet decisions and the Parliament that worked to undermine civilian rule in Pakistan and caused a series of clashes between Parliament and the Supreme Court, raising the question of where democracy and constitutionalism stand today in Pakistan.
The findings from Indian judicial activism include that judicial activism against the civilian government could damage democracy because courts sometimes act as “too powerful” and sometimes “overstepped their limits and sometimes jeopardize domestic politics, foreign policy, and fiscal stability.
In the case of deportation of illegally residing foreigners in Pakistan, the need for action against illegal foreigners emerged when it became clear that these elements were directly involved in a kind of economic terrorism as well as physical terrorism by attacking troops, smuggling currency, and edibles out of Pakistan, targeting food security and forex reserves of Pakistan. The action against illegal Afghans started giving results because 80 percent of the black forex market was run by them and the smuggling of wheat, cooking oil, edibles, and sugar was instantly controlled, dropping prices in the market and stabilizing local currency against USD$. The intervention of the judiciary in this matter that is purely related to the security of the country is an interesting development and directly challenges the responsibility of the state to protect its citizens from weaponry terrorism and economic terrorism.
Nations craft their future—through sane decisions or through stupidities— Russian folklore