VIEW: Institutions and their interactions —Anwar Syed - Tuesday, October 12, 2010

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The SC, and following its example the provincial high courts, have been taking suo motu notices of abuses of power and other irregularities taking place in various government agencies. This amounts to the courts' intervention in the executive's day-to-day workings

Two or more persons, even if they have a shared goal, make a group, and in some cases a mob, but they do not form an institution. That would materialise only if they adopted certain procedures to govern their actions. In the absence of such procedures, there is no institution. It follows that institutionalisation works as a denial of arbitrariness. A ruler cannot act as the spirit moves him if he is required to follow designated procedures, which may include consultation with other organs of the state.

Institutions abound in society, including voluntary organisations such as bar associations, student unions and chambers of commerce among many others. In this article we are concerned with institutions of governance, which too are numerous. Some of them are more prestigious than others, but each is expected to work in its own designated domain. Actually there is some overlapping and even intervention in each other’s province.

An estrangement between Prime Minister Gilani’s government and the Supreme Court (SC) of Pakistan has been developing for the last several months. The government claims that it respects, indeed honours, the court. The court and neutral observers say that the government does not implement its orders and decisions. Many months ago, the court made void the National Reconciliation Ordinance (NRO) ab initio and ordered that the cases against the NRO beneficiaries that had been suspended or suppressed should be resumed. These cases have technically been reopened but they are not being seriously pursued. The court directed the government to advise the Swiss authorities to proceed with their inquiries into Mr Zardari’s alleged money laundering. It has been refusing to write such a letter.

The executive in Pakistan has been accustomed to dominating, more than obeying, the judiciary. The judges on their part — barring a few exceptions such as those of Sir Abdur Rashid, M R Kayani and A R Cornelius — have been deferential to the executive. Each time a general seized the government, the SC not only validated his coup but also went out of its way, unsolicited, to authorise him to do away with or change the country’s constitution at will. The conviction of Zulfikar Ali Bhutto at the Lahore High Court on the charge of complicity in a murder in 1978, and the rejection of his appeal by a four-to-three vote in the SC, are rightly said to have been intended to placate General Ziaul Haq, the ruler of Pakistan at the time.

It was surely a happenstance that a man of unusual independence of mind, Iftikhar Mohammad Chaudhry, got to be the chief justice (CJ) of Pakistan. Under his leadership, the SC began to take adverse notice of acts of arbitrariness and misuse of power being committed by President Pervez Musharraf’s regime. On the morning of March 3, 2007 the president, accompanied by the three chiefs of the armed services, summoned the CJ to his camp office and asked him to resign. This he declined to do, whereupon the president suspended him and placed him under house arrest, where he remained until a majority of his colleagues in the court ordered his release and brought him back to office in July of the same year. On November 3, 2007, General Musharraf committed a blunder that cost him his job a few months later: he imposed a state of emergency on the country and, acting under its authority, dismissed CJ Iftikhar Mohammad Chaudhry and many other judges of the SC and the provincial high courts.

A long march to Islamabad, organised by the lawyers and joined by several influential political leaders and thousands of their followers in March 2008, forced the government to reinstate Chief Justice Iftikhar Mohammad Chaudhry and many of the other judges who had been sacked. Chief Justice Chaudhry’s reinstatement had the effect of reasserting his independence and that of the SC and also the higher judiciary in general. As most observers perceive it, the SC has since been acting independently, without fear or favour, so to speak. Of all the civilian institutions in the country, it is the most highly regarded, viewed by many people as the guardian of the oppressed and protector of their rights under the law. It would seem to have accepted this role, in addition to its normal function of acting as the court of last resort in the adjudication of disputes that the parties concerned may bring before it.

There is the danger of going to excess in the performance of this role. Indeed, the excess has already surfaced. The SC, and following its example the provincial high courts, have been taking suo motu notices of abuses of power and other irregularities taking place in various government agencies. This amounts to the courts’ intervention in the executive’s day-to-day workings. If a police officer refuses to register a citizen’s complaint of an injury done to him by another person, the aggrieved party can go to the district police officer concerned for redress. The court should take cognisance of the matter only if the complainant applies to it for a writ of mandamus. In this connection, it may be of interest to note that in more than 220 years of its existence, the SC of the US has never taken suo motu notice of any wrongdoing that may be happening in the country.

There is more to the workings of government institutions in Pakistan than the formal allocation of their powers and functions would indicate. A crisis has arisen because the executive does not implement those decisions and orders of the SC that go against its wishes. Prime Minister Gilani’s reluctance in this regard does not emanate from his own volition. It may be assumed that he acts under President Zardari’s instructions, a man who wants his will, not the rule of law, to prevail.

The writer, professor emeritus at the University of Massachusetts, is a visiting professor at the Lahore School of Economics

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