Their lordships overstep the mark



By Ayaz Amir

The Pakistani disease, if we have to choose one and place it above all others, is not to do what one is qualified to do but to do that which one is not meant to do. The political class has forgotten the art of leading (it dances to the tunes of others). The administrative class is no longer any good at administration. The military have a mixed record in defending the country. But when it comes to seizing power–in other words, stepping out of their lawful domain–their record is unrivalled.

As for their lordships of the higher judiciary, far from being bulwarks of the constitutional order they have been abettors of dictatorship. Mercifully, after Chief Justice Iftikhar Chaudhry’s defiance of Musharraf, and after the lawyers’ movement which was spawned by Justice Chaudhry’s defiance, this charge is no longer relevant. The higher judiciary has redeemed its past sins and is now set on a different course. But now another danger looms. From one extreme–abetting dictatorship–the higher judiciary is swinging to another extreme–intruding more and more into the spheres of the executive and the legislature.

For their own good their lordships should restrain themselves on this count. Justice Chaudhry and the other judges who stood up to Musharraf have earned great public respect because of their stand on principles. It would be a pity if this respect were in any way to be eroded if the public at large and other institutions of government came to see their lordships as doing things they were not meant to do.

In passing, may it be said that ridiculing the judiciary and maligning it in any way, or casting aspersions on the integrity of judges, constitutes contempt of court. Commenting on a judgment or any other decision of the courts is not the same thing. We should get this straight before proceeding any further.

A tax may be reasonable, bad or downright perverse. But the levying of it or the withdrawing of it is the prerogative of parliament and the executive authority. There can be a hundred opinions about the so-called carbon tax levied by the government in the present budget. But this was a tax approved by the National Assembly (unanimously or not is beside the point). Government and National Assembly can be pilloried for it. It can be denounced a hundred times over. But how does it become the business of the SC to pass any orders–interim or permanent–against it?

We must do what lies within our competence and not overshoot the mark of our constitutional responsibilities. And if we insist on overstepping our limits mark then we can have precious few objections to the ‘constitutional’ role 111 Brigade of 10 Corps arrogates to itself every now and then when its truck-mounted columns stream out of Westridge Cantonment in the direction of Islamabad, to unseat lawfully elected governments in the name of saving the country. The road to hell is indeed paved with the best intentions.

In its short order on the carbon tax issue the SC has allowed itself to be dragged into the complications of petroleum pricing. Whether the price of petrol, diesel and kerosene oil is reasonable or a burden on the public, this is for the government and the elected representatives of the people to decide. The elected representatives of the people may not be doing their job. The government may be shirking its responsibility to look after the interests of the public. But these are separate issues. The SC’s business is to interpret the law and to stand guard over it. Petroleum pricing and taxation policy do not lie in its domain.

“…prima facie,” says the SC, “we are of the view that there was no justification for imposition of carbon surcharge in place of PDL (Petroleum Development Levy) because such a tax could be imposed subject to certain conditions, such as provision of petroleum products free of lead or carbon dioxide and consequential pollution free atmosphere to all citizens.” This is dangerous ground the SC is treading on for it implies the judicial laying down of conditions for the imposition of taxes. This is an infringement of parliamentary responsibility.

In its order the SC refers to the Preamble of the Constitution and the reference in it to “social justice”. The implication is that this provision allows the SC to examine whether any act of government passes the test of social justice. To accept this interpretation is to make the SC’s purview virtually limitless.

Power is best exercised when applied sparingly. Speech is most effective when brief and to the point. Similarly, the apex court is most effective when its interventions into public policy, under the cover of social justice, are few and far between.

Along the same lines, when the SC takes suo moto notice of anything it should cause a country-wide stir. People should sit up and take notice. But if their lordships start exercising their suo moto powers every day and in matters of relatively trivial importance, public interest will be lost and the SC’s own authority in the public eye will be undermined. The over-use of anything may not in all cases breed contempt. But it does nurture indifference, the last thing most of us would want as far as the Iftikhar Chaudhry Supreme Court is concerned.

In Bacon’s Essays (I can’t help boasting I have an old, second-hand 1916 edition), in the one “Of Judicature” the very first words are, “Judges ought to remember that their Office is to Interpret Law, and not to Make Law or Give Law : else will it be like the authority claimed by the Church of Rome…”

We have had Supreme Courts in the past which have been like lambs before military shepherds. But now that we have a democracy in place–maybe an imperfect democracy and maybe a government with a thousand defects, but a constitutional government all the same–it would be a sad day if the SC were to assume the airs of a new Church of Rome.

There is so much for the courts to do. There is so much for the Supreme Court to do. The lower courts are riddled with inefficiency and corruption. The SC is already seized with the question of reducing the huge backlog of undecided cases. While Justice Chaudhry has set things in the right direction by stressing the need for the lower courts to improve their performance and be more active in disposing off cases, this task will not be achieved by mere pronouncements alone. It will need all of Justice Chaudhry’s efforts before tangible improvements are felt in the lower courts. We are at a delicate moment in our history, facing internal strife and extraordinary external pressures. The fight against extremist elements, schooled in the ideology of misguided jihad, are straining our utmost capabilities. The American presence in Afghanistan imposes its own compulsions. Such a situation demands a higher degree of leadership on the part of all those in a position of authority and responsibility. This includes the government, the political class, the armed forces and the higher judiciary.

Ineffective and inept the higher workings of government may be, but let no one say that this is a continuation of the Musharraf order. This is one cliché we should now transcend. Musharraf and all he stood for are things of the past. We now have to pick up the pieces and reinvent a new Pakistan. Things went drastically wrong for Pakistan when General Zia seized power in the summer of 1977. Dismantling the legacy of the last 32 years is not an uneasy undertaking. But if we are at all to ensure that our future is better than the missteps of the past, this task has to be taken in hand.

The first thing we need is stability and the preservation of the present democratic order. If there is to be reform and change and better governance these must come from within the crucible of this order, not through another march of 111 Brigade. Rocking the boat is a luxury we can ill-afford at this juncture. As for social justice, that is a subject best left to the representatives of the people. They may not be up to this task but then it should be up to our democratic system, and the turning of the democratic wheel, to give us a better choice of leaders.

The News — 10th July, 09

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