Monday 14 December 2009

Pakistan: Judges on Trial in the Court of Public Opinion - A Commentary

Judges on Trial


Kunwar Idris

Statements by lawyers, observations by judges and ceaseless TV talk-shows appear to have given rise to a general expectation that the Supreme Court’s ruling on the National Reconciliation Ordinance(NRA) is going to transform the country’s constitutional and political landscape.

That is unlikely for the simple reason that the court can only interpret the constitution and not amend it, much less enact a new one.

Further, the court can disqualify an erring leader but cannot name another to replace him, nor can it direct the policies of political parties.

All that the Supreme Court (SC) is expected to do (and that much it must) is to decide whether the purpose and contents of the NRO are in violation of the constitution. The government counsel Kamal Azfar’s argument of the country being at a ‘crossroads’ where one road leads to stability and another to disaster sounds like harking back to the doctrine of necessity yet again.

Once the Supreme Court (SC) has ruled on the constitutional question, it should be left to the lower courts and the legislative and executive organs of the state to deal with the consequences of the findings.

If the SC were to take upon itself the task of determining the fate of thousands of people who have profited or lost from the NRO, it would be left with no time to hear the huge pile of other cases where litigants may have been waiting or languishing in prison and even on death row for years.

There is yet another and weightier reason for the SC not to probe into the culpability of individuals: it is believed by many that most judges on the bench could have a personal grievance against the author of the NRO or its beneficiaries. At best the SC may give time-bound instructions for disposal of cases to the subordinate courts or tribunals.

It is important for the SC to demonstrate its judicial detachment notwithstanding the insult or outrage its judges might have suffered at the hands of the people who are now arraigned before it.

Surely all the 17 judges on the bench would be conscious of the principle Lord Hewart enunciated a century ago:
‘It is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.’
Equally relevant is what an American supreme court judge had to say:
‘We are final not because we are right. We are right because we are final.’
Thus, in a manner of speaking, the judges are on trial in their own court.

A point more important than judicial detachment worth making is that the judges must not take over the legislative and executive functions of the state. Besides the principle of it, they do not have the means to enforce their orders.

The SC and high courts could only watch when their orders on the price of sugar were disregarded. There were too many people defying court orders to be hauled up even for contempt. And how the consumers wished the courts had never intervened for it only drove the price up.

The scrutiny of the NRO, however, provides a grand opportunity to the Supreme Court to lay down a framework for managing the affairs of the state in which all citizens get equal and fair treatment not just under the law but also under administrative rules and practices. The principle underpinning the framework should be that power is derived from laws and vests in institutions. Discretion of individuals — howsoever important — is circumscribed.

The issue of concern to the common man at the moment is not the form of government or whether executive authority is vested in the president or the prime minister but lack of trust between the government and the people at large.

For the last two years the GOVERNMENT (for the common man government includes the courts and parliament) has been dealing with its own problems rather than that of the public, and the standards of governance have fallen to an all-time low.

Here are a few examples randomly picked from daily life.

  1. Most appointments in public service — almost all in lower grades — are made on personal or political grounds. Interestingly enough, PPP ministers in the Punjab coalition government have publicly complained that they are not being given their quota in jobs for their kin and workers.

  2. At a higher plane, in the recent large-scale promotions to the rank of secretary every factor seems to have weighed in but merit.

  3. Every house in Islamabad has been allotted by the works minister at his discretion. Then there is an abundance of ministers — four for religious affairs alone. There is also a minister for special initiatives.

  4. The president’s secretariat, houses of parliament and government departments owe billions of rupees to the electric supply companies but 45,000 schools in Sindh alone are said to be without electricity or water for non-payment of bills.

  5. Karachi’s city government has been building medical colleges and cardiac and trauma centres in fairly well-off localities while Machhar Colony, a slum of half-a-million inhabitants, does NOT even have a dispensary.

  6. The federal, provincial and city governments, port trusts and cantonment boards have been building flyovers, expressways and parking lots for the convenience of motorists but have provided just 50 buses for the public in eight years.
The Supreme Court can make a lasting contribution by laying down a system that makes future governments more caring and less extravagant.

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