Swing of the pendulum - Irfan Husain - Saturday 9th April 2011

IN Sri Lanka a couple of months ago, I met a very interesting man who had rented a holiday house near our place on the beach.
Gus is a judge from New York who has a Brooklyn accent straight out of a Woody Allen movie. He’s extremely articulate on a wide range of subjects, and we had several long conversations over the course of his stay.
One evening, he remarked how impressed the American legal fraternity had been with the 2007 campaign for the restoration of the chief justice. He went on to say how shocked he and his colleagues had been to see lawyers garlanding Salman Taseer’s killer. “How can lawyers trained in upholding the rule of law possibly applaud a cold-blooded murder?” he asked. I had no reply.
He went to inquire how an independent judiciary was working in Pakistan. This is a complex question without a clear-cut ‘good’ or ‘bad answer. On the one hand, the Supreme Court (SC) has been tough and independent-minded, but on the other, it is perceived, it has taken to assuming more and more executive powers. Transfers and postings of federal employees,
normally the domain of the Establishment Division, now routinely attract the attention of our higher judiciary.
An entire slew of strictures and reprimands from the court keep several ministries fully engaged in drafting their defence and their responses. Ministers and secretaries constantly shuttle between their offices and the court premises. Above all, the media is fixated by these unending legal proceedings.For the nation, weighty constitutional matters have become the stuff of headlines, and TV anchors and pundits now hold forth on the finer points of our constitution day in and day out. Terms like the NRO, the PCO, the JC and the 18th Amendment have entered the political lexicon.
In most legal systems, suo motu proceedings are a rarity, and not the norm. The higher judiciary reserves such notices for the public interest in important cases where the executive is dragging its feet.
Among the cases in which the SC’s intervention has been questioned is the case of the cancellation of the Steel Mill’s privatisation under Musharraf. In that case, the state-owned white elephant was set to be sold to the highest bidder when an unsuccessful party claimed before the SC that unfair means had been used to secure the ailing steel industry.
Without recording any reasons beyond the fact that the process had been conducted with “indecent haste”, the court cancelled the bids. Since then, the taxpayer is believed to have paid tens of billions to keep the Steel Mill afloat. I have no idea whether any favours were done, but I would have been happy to be rid of the burden of this loss-making industry and its ballooning deficits, irrespective of whether there had been any wrongdoing. When we talk about accountability, surely such cases should be included.
Then there was the judicial intervention in the pricing of sugar a couple of years ago. Here, the SC issued an edict fixing the price of the commodity at an arbitrary figure. The result was predictable: mills refused to sell at this level, and the shortage sent the price soaring. International prices then were at an all-time high, and this drove sugar prices here and elsewhere to unprecedented levels.
Meanwhile, the backlog of cases before Pakistani courts continues to rise. Presently, 1.35 million cases are awaiting decisions before various judges; out of these, over 20,000 are pending in the SC. Surely the time and energy — to say nothing of the wisdom — of our higher judiciary should be focused on clearing this vast backlog, instead of taking on new and highly political cases.
Don’t get me wrong: I continue to applaud the SC’s position and efforts on the whole question of disappeared Pakistanis. Their fate is a scandal, and the recovery of the few who have been returned to their families is due entirely to the activism and determination shown by the chief justice. But this is a clear example of obstruction by the executive that is alleged to have pursued a covert policy of illegal detention and torture for far too long. If the government is incapable of controlling our intelligence agencies, it is entirely appropriate for the higher judiciary to intervene.
But a suo motu notice is a judicial weapon that is sparingly used in other countries. If sprayed around too liberally, it loses its potency. True, given the dismal state of governance, it must be tempting to wave it like a magic wand in a bid to right the many wrongs that plague our country. However, this is no panacea, as even suo motu intervention requires going through our laborious legal and bureaucratic procedures.
It is a fine line between judicial independence and intrusion into executive territory. For far too long, the executive called the shots to the judiciary, especially when the country was being run by generals. Our history is littered with judgments that legalised military coups and other crimes committed by those in power.
The most grotesque of these was the four-three split judgment condemning an elected prime minister to death. I am glad this travesty is coming up before the SC for review as it remains a major stain on our higher judiciary’s tarnished reputation. But in the zeal to redress the balance between the executive and judiciary, there is a real danger that the pendulum might swing the other way. An independent judiciary is in our national interest; an overbearing one is not.

Source : http://www.dawn.com/2011/04/09/swing-of-the-pendulum.html

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