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"How do you see Judicial Activism in Pakistan?

 Post your comments after inferring the above topic. Your comments should NOT exceed from 100 to 120 words.

Closing Date Wednesday, July 11, 2012

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PAK301 GDB Solution

"How do you see Judicial Activism in Pakistan?

ANSWER 

The recent orders by the Supreme Court for removal of former National Bank of Pakistan (NBP) president Ali Raza and the return of mobilisation advances to the government by the RPPs (Rental Power Projects) have once again triggered the debate over judicial activism versus judicial restraint.

There are quarters who laud the apex court’s role in purely economic matters, which they believe are being ruined due to state favouritism and corruption. However, there are those who believe the damage was bigger than the correction intended at. They cite the matters pertaining to fixing of sugar prices, cancellation of Pakistan Steel Mills’ privatisation and so on.

The NBP president was stopped by the court from continuing his fourth term in the office which the petitioner claimed had been awarded to him in violation of the Banking Nationalisation Act, 1994. Under this Act, a person can be appointed as NBP president for not more than two terms.

Raza’s supporters say the asset base of NBP crossed the Rs1 trillion mark in 2010, up from Rs372 billion when he joined ten years ago. The bank’s after-tax profits had also risen from Rs461 million to Rs18 billion over the same period.
This performance does impress his opponents, but they say the government should have given a corporate status to the bank if it wanted to bypass laws applicable on nationalised banks. Under the corporate status, the board of directors is authorised to approve decisions like these.
Jawad Hasan, Advocate Supreme Court and Additional Advocate General Punjab, backs SC’s involvement in purely economic cases. He tells TNS, “It’s the function of the executive to protect the rights of people and if it doesn’t, then the apex court can intervene.”
Jawad Hasan says the issue in question falls under the category of people’s right to trade and profession and the court can take action in cases of public importance under Article 184 (3) of the Constitution of Pakistan.
About the non-compliance of SC orders regarding sugar prices, Jawad says it’s binding on all courts and departments to obey its orders under Article 189. “Anyone not doing that can be proceeded against on charges of contempt under the Article 204. The apex court can proceed against sugar industry players under this article any time if it wants to.”
He does not agree that Article 175 (2) of the constitution limits the role of the apex court. This clause says no court shall have any jurisdiction except conferred upon it by the constitution or any ordinary law. He says it’s the constitution that awards SC the power to protect people’s right to trade, profession and life which are badly affected by wrong economic decisions.
A frequently given common argument against judicial activism is that it violates the sovereignty of parliament as declared by the Constitution of Pakistan and encroaches upon the domain of the executive. Those in support, however, assert that the sovereignty is vested in the constitution, and not the parliament. “The parliament can legislate against greater public interest and to benefit the privileged few,” they claim.
Chaudhary Fawad Advocate, a Lahore-based lawyer, does not support excessive involvement of judiciary in matters related to the country’s economy. He says the world has witnessed judicial activism in many countries and the Indian Supreme Court has taken judicial activism to new heights. “However, the Indian SC refrained itself from indulging into purely economic matters.”
Fawad says the SC has taken over the roles of policy-making, executive and legislature and its involvement in economic matters has harmed the economy. He says the Steel Mills case has laid down a precedent leading to end of the privatisation process in Pakistan. He disagrees with Jawad and says Article 175 (2) does limit SC jurisdiction. Fawad claims SC’s suo motu on major economic projects in the name of corruption has led to a complete breakdown of economic policy.
Fawad believes the SC mostly decides cases according to media perceptions and may not be correct always as judges are not economists. “The recent SC remarks on investment projects and on the conduct of investors have deterred foreign investor from investing in the existing environment,” he tells TNS.
However, Ahmad Rafay Alam, Advocate Supreme Court, says superior courts are not bound by any procedural limitations and the objective to provide justice to all becomes the driving force behind its proceedings. He tells TNS this suo motu jurisdiction is both a remarkable and controversial feature of public interest litigation. “Though it allows the superior courts to free themselves totally from the rules of procedure and precedent, this jurisdiction is too arbitrary and does not sit well within the scheme of Pakistani law.”
The explanation of what Rafay Alam says comes from a senior lawyer having sufficient experience of public interest litigation. He says it is believed where there is no provision of appeal, that law is of no value. “In case of SC decision, a person affected by it has nowhere to go.”
Secondly, he says, as time is too short in writ jurisdiction, judges have to decide immediately on the basis of supporting material provided by the petitioner(s). “It takes the respondents a long time to clear their position.” Citing an example, he says HBL was privatised in 2004, but its status is not clear even after the lapse of seven years as the matter was taken up by court.
“It is a common perception that every state actor is corrupt and inefficient per se which seems to have prompted the SC to intervene in so many cases,” the lawyer adds. He also holds the media responsible for creating hype and building pressure on the judiciary. Referring to Reko Diq case, he says the respondent was issued contempt notice for clarifying its position through a newspaper ad. On the other hand, the petitioner held a press conference just outside the apex court and discussed a sub-judice matter at length but no one took notice, the lawyer concludes.


Graded MDB for PAK301 will be opened on July 09, 2012 and will remain open till July 11, 2012. The topic of this GMDB will be,

 

"How do you see Judicial Activism in Pakistan?

 

Post your comments after inferring the above topic. Your comments should NOT exceed from 100 to 120 words.

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On judicial activism

The most challenging task in democracy is to balance rights and rightful role on the one hand and obligations and societal good on the other. They go together. The right of one person is an obligation for other person. This applies to individuals, groups and state institutions because none functions in a vacuum.

Much depends on how a person or an institution interprets the facts of a situation and articulates one’s role. There is a strong tendency to equate societal good and obligations towards others with one’s partisan interests in a society where the norms of democracy are not firmly established. This is more so where the individuals, groups and state institutions do not have a long experience of working in a democratic and participatory framework. Invariably, the desire to expand the domain of authority dominates the disposition of individuals, groups and state institutions. Restraint, moderation and mutual respect become rare commodities.

There is a lot of jockeying for power and influence in the formative phase of democratic transition. This power struggle is often couched in high moral rhetoric or legal and constitutional interpretations to one’s advantage. One troubling tendency is to engage in propaganda to delegitimise democratic processes and leadership if one’s partisan agenda is not achieved. This is also done as a part of struggle to expand one’s power or influence or domain of authority.

It is quite common in Pakistan to invoke abstract democratic theories and principles to delegitimise democratic institutions and processes. There is a tendency to trash democracy because it does not meet the ideal and textbook criterion. Other argument is that there is no use of democracy if it does not solve the problems of the common people. There is no answer to the question as to what is the guarantee of solution of the problems of people in a non-democratic and military-dominated system. If nothing works for questioning the legitimacy of elected rulers or democratic arrangements, Islamic principle or some precedent from Islamic history is invoked to argue that the existing arrangements should be done away with.

An independent judiciary is needed for a democratic political order but this is not the only requirement. It is important that different state institutions like the executive, the parliament, the judiciary, the bureaucracy and the military perform their assigned tasks within the limits of law and constitution and respect each other’s autonomy and role. Any attempt by one institution to overwhelm others causes institutional imbalance and adversely affects democracy and civilian order. Another important principle of democracy is the primacy of elected institutions over non-elected institutions, although the elected institutions and office holders have to function in accordance with the constitution.

We are experiencing a steady attempt by the Supreme Court and the High Courts to expand their domain of action through judicial activism. Though judicial activism is a well-recognised principle for public service and welfare issues but the use of judicial activism and the suo-motu power by the Supreme Court and, at times, by the High Courts, since 2009 has generated a debate in the legal and political circles about the extent to which the superior judiciary can interfere in the domains of other institutions. If we make a list of issues taken up by the superior judiciary since 2009, judicial activism can be described as unprecedented, covering a wide range of issues relating mainly to governance.

Even if a purely legal approach is adopted to examine judicial activism, one cannot help pointing out that the issues taken up by the superior judiciary have political implications in Pakistan’s polarised political context. Most politically active circles get information about court proceedings through the press and TV news channels that highlight the comments made by the judges sitting on the bench. A large number of comments as published in the media can be described as politically loaded. These comments are used by the opposition parties and the media to embarrass the federal government.

Sensing tension between the superior judiciary and the PPP-led federal government, the opposition parties have endeavoured to turn the judiciary into an arena of contestation with the PPP. They have gone to court on a number of purely political issues that should have been settled through political interaction or through the parliament. After having failed to stall the Senate elections by political pressure, the PPP adversaries are now approaching the Supreme Court for stopping the Senate elections due on March 2.

The most interesting case is a petition filed in the Supreme Court by someone on the basis of a speculative report that the prime minister might remove the army chief and director general of the ISI. The prayer of the petitioner is to stop the prime minister from doing that. The Supreme Court wants the prime minister to give a written undertaking for not removing these top army officers. It would be interesting when the Supreme Court takes up the Asghar Khan case involving the ISI and some leading opposition political leaders. There are two other cases that are likely to bring the army/intelligence in focus.

The long term political implications of the possible conviction of the prime minister in the contempt of court case are going to be negative for political stability and internal harmony. If the PPP-led coalition at the federal level stays intact after the conviction of the present prime minister it can elect a new prime minister and thus the present political order at the federal level can continue. What if the new prime minister also refuses to write the letter to the Swiss authorities for reopening of corruption cases against President Zardari?

In case of increased tension between the elected executive and non-elected Supreme Court, the opposition parties are expected to oppose the federal government. This will set the stage for political confrontation and turmoil. If the confrontation between the federal government and the opposition escalates Pakistan’s troubled economy will further deteriorate. This will make the civilian political order vulnerable to strong pressure from the military that will view itself as a stabilising and conflict-managing entity.

Though several internal and external factors are not conducive to military takeover, the military’s capacity should not be underestimated to set aside the civilian order in a situation of acute internal conflict and economic relapse. In case of direct military intervention, the superior judiciary will also be removed. Thus, the decline and discredit of democracy endangers independent judiciary.

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Helping Material For the GDB

The SC cannot be the forum to make the final arbitration. It can interpret the constitution but cannot take away the rights of the people

Since its creation, Pakistan witnessed multiple military coup d’états that obstructed the growth of democracy. None of the elected parliaments could complete their term. Either the head of the state or the military dissolved parliament. The then governor-general dissolved the first Constituent Assembly in 1954 when the drafting of the constitution reached a final stage. Tamizuddin Khan, the president of the Constituent Assembly, challenged the governor- general’s action in the Sindh High Court. The Sindh High Court accepted the writ and after a proper hearing declared the action of the governor-general illegal, who appealed against the judgment to the Supreme Court (SC) of Pakistan. The country fell into a deep constitutional crisis. Ignoring protocol, the governor-general reportedly went and met Chief Justice Munir at his residence. The SC in its judgment validated the action of the governor-general under the infamous ‘doctrine of necessity’. The same person had earlier dismissed the prime minister on the ground that he had lost the confidence of the people. It was true that the dismissed prime minister became unpopular in the eastern wing of the country but it was the job of parliament to have a no-confidence vote to remove him from office. The governor-general was supposed to act on the advice of parliament. His successor Iskander Mirza followed the same path. He dismissed Prime Minister Hussain Shaheed Suhrawardy on the pretext that he no longer enjoyed the confidence of the people but did not allow him to test the confidence of parliament. Two years later, the same Iskander Mirza dissolved parliament, abrogated the recently promulgated constitution and handed over power to General Ayub Khan. This marked the beginning of the dismemberment of united Pakistan.

General Ziaul Haq took charge of the country in the backdrop of a mass movement launched by the opposition parties, protesting the rigging of the parliamentary election in 1977. The government of Zulfiqar Ali Bhutto tried to contain the movement by force but that did not help. The movement turned violent and caused large scale destruction of life and property. General Zia seized the opportunity and overthrew the government. Bhutto was detained on the charge of the attempted assassination of Ahmed Raza Kasuri. The Lahore High Court found Bhutto guilty and sentenced him to death. The verdict of was challenged in the SC. The full bench of the SC gave a due hearing and by a narrow margin upheld the verdict. This judgment of the highest court gave rise to controversy, casting a shadow on the independence of the judiciary in Pakistan.

Benazir Bhutto’s government was dismissed by the president in 1996 on the ground that it was corrupt and failed to uphold the rule of law. The dismissal of the government was challenged in the SC, which upheld the decision. The crux of the matter is that people elect members of parliament and the party winning the majority seats becomes eligible to form the government. As long as the party in power commands the confidence of parliament, it has the right to govern the country. In the event the president reserves the authority to dismiss the government on the ground of poor performance or being involved in corruption, it denies the very principle of governance of the people. Should the government fail to perform up to the expectations of the people or drifts away from its commitment, it is the people who should decide the fate of the ruling party in the next election. They will either re-elect the party or give a chance to another party to form the government. In the same vein, the SC cannot be the forum to make the final arbitration. It can interpret the constitution but cannot take away the rights of the people. The elected government represents the majority members of parliament and thereby represents millions of people in the country. The SC, regardless of the depth of knowledge on the law of the land and the constitution, cannot overrule the choice of millions of people. If it does, it will dismiss the very essence of democracy — the government is of the people, by the people and for the people.

The judiciary in Pakistan came under turmoil during the regime of General Pervez Musharraf. In the year 2000, a good number of judges of the high courts and the Supreme Court had to leave because of their refusal to take oath under an ordinance issued by the office of the president. The situation improved after the last parliamentary election. The Chief Justice and judges sacked by the military regime were reinstated. This was a healthy move and people expected that the judiciary would again be the forum of last resort to seek justice.

The SC of Pakistan on June 19, 2012 disqualified Prime Minister Yousaf Raza Gilani, declared his membership of parliament void and declared him ineligible to participate in elections for the next five years. Earlier the SC had found Mr Gilani guilty of contempt of court. The court observed that since no appeal was filed against the judgment, the conviction had attained finality. It noted that the Speaker should not have gone beyond her authority to find faults in the judgment of the apex court.

The issue that has shaken the country and cost Mr Gilani the job of the prime minister centres round the money allegedly transferred to Swiss banks by President Asif Ali Zardari. After the dismissal of Ms Benazir’s government, Mr Zardari was arrested and kept in jail for nearly eight years. The administration could not prove any of the charges of foul play allegedly committed by him and failed to get him convicted in court. Judged in this backdrop, the attempt of the highest judiciary to dismiss the prime minister and thereby his government on the issue involving the president seems untimely. It has added to political instability when the country is facing the wrath of the superpower. People cannot ignore the reality that a government deeply troubled by economic and security problems cannot effectively confront an international challenge. On the other hand, the action of the SC has come as a reminder to the politicians that they do not have the licence to play with the resources of the country. Apart from being accountable to the people, they should conduct themselves to the highest standards. People in Pakistan have now the reason to contend that at last the judiciary is in the pursuit of recovery of their assets siphoned abroad by the powerful elite. The judiciary gave birth to the infamous doctrine of necessity in the past and this did not help the nascent democracy to grow. Successive military dictators took advantage of that, overthrew elected governments and destroyed political institutions. The hope is that the judiciary’s action will not precipitate a crisis that will put the democratic process again in jeopardy. At a time when long-term dictators in the Middle East have acceded to the people’s choice, the process cannot be impossible to reverse in Pakistan. The people of Pakistan deserve democracy and nothing short of democracy will keep them resolved to meet the challenges, be it from the superpower or from across the border.

JUDICIAL ACTIVISM IN PAKISTAN
OUTLINES:
1. Introduction
2. What is Judicial Activism?
3. Origin of Judicial Activism
Marbury Vs Medison case
Macquillun VS Maryland Case
4. Judicial Activism in Pakistan
A. Historical Background
eg. Moulvi Tameez ud din case, Dosso case, Nusrart Bhutto Case
B. Current scenario
5. Is it a Judicial Activism or Judicial Adventurism in Pakistan?
6. Causes of Judicial Activism
a. Mal performance of executive
eg. Sugar crisis, Punjab Bank scam, missing person issue
b. Mal performance of legislature
eg. NRO, 17th amendment, ambiguity in laws
c. Corruption/ No accountability 
d.
Violation of Fundamental Rights of people
e. Role of strong civil society
7. Repercussions/impacts of Judicial Activism
a. Protection of Fundamental Rights of people
b. Check on extra-constitutional acts of administration
c. Political adventurism
d. Public awareness against injustices

8. Legal status of Judicial Activism
a. Suo moto notices U/A.184(3)
b. Judicial Review Power 
c. Supreme Court is guardian of Fundamental Rights of people
d. Precedents..eg USA and India
9. Judicial Activism Vs Parliamentary Sovereignty
10. Conclusion

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