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The Judiciary and the Kleptocrats


By Imtiaz Gul

 Weekly Pulse, August 17, 2012


On August 13, the Supreme Court again took up the issue of the so-called "obscene TV programmes" and the exchange between the judges, lawyers and PEMRA officials revolved around the definition of obscenity. This case, though extremely important for public, raised some important questions ever since the apex chose to address the issue a few weeks ago, when the Court directed the Pakistan Electronic Media Regulatory Authority (Pemra) for strict action against TV channels for airing ‘obscene’ programmes and advertisements. The court also asked the Pakistan Telecommunication Authority for an explanation on the issue. Viewed against the cCourt's special interest in the subject, one wonders whether the Supreme Court is an arbiter on constitutional and legal matters or a moral vigilante force, acting as the helping arm of law-enforcement agencies such as police and PEMRA to check what it deems as obscenity? Viewed against internationally practiced norms, your intervention also raises the question as to whether a clearly spelt out definition of “obscenity” or administrative irregularity exists and whether the Supreme Court will determine the parameters of these two phenomenon?

Similarly, while the court’s pursuit of the cases of missing persons and the law and order situation in Balochistan has certainly won public approval and evoked optimism for relief among the people affected by this unfortunate situation, or its notices to the power sector affiliates on account of massive load shedding, or the court's silence vis a vis the Punjab Chief minister holding on to almost two dozen ministries are being quoted as examples of selective accountability. The relentless scrutiny of government appointments to public offices has also won the Supreme Court widespread applause as a constitutional institution that is putting limits to the arbitrariness of the elected representatives who tend to treat the public trust more as a privilege than a responsibility.

The apex court interventions in human rights’ issues and abuse of state power and resources (such as appointments of cronies, or dubious deals such as rental power plants) indeed have raised its stature. But interventions to nullify the Pakistan Steel Mills privatization or literal indecision in the Reko Dik case (so vital to the interests of people of Balochistan) are some examples of failure in matters that relate to the greater national interest i.e. the investment environment which is directly linked with injudicious handling of mega-projects such matters such as Reko Dik, LPG Import Project.

Probably that is why Yaseen Azad, President Supreme Court Bar Association and a vocal supporter of the independence of the judiciary, decided to publicly draw the attention of the Court to an extremely pressing issue i.e. massive lingering pendency of public interest litigation. At a press conference in Quetta (Aug 8), Azad opined that the court should also attend to cases other than those revolving around the NRO. His plea obviously relates to the heavy pendency that the judiciary currently faces; the Supreme Court’s annual report covering the period between April 2010 and December 2011, speaks of a staggering pendency of 17,246 cases. Add to them another at least 620 cases this year so far (according to a monthly news magazine). This figure is likely to soon cross the 18,000 mark. The lower judiciary, on the other hand, reels under an even more alarming backlog i.e. nearly 1,615,019 cases are pending with the high and subordinate courts of the Punjab province alone.

Back in April, a national daily from Lahore had quoted from an official report which spoke of “as many as 383,423 are pending since 2,000 to Feb 2011 at the Punjab’s subordinate courts while 51,591 of the same period are waiting for speedy decisions by the Lahore High Court. Some 643,382 civil cases since March 2011 are in queue to be decided at lower judiciary and 75,489 at the Lahore High Court. While these mind-boggling numbers on pendency of cases

underscore the predicament of over at least 1.6 million litigants across Pakistan, these also fly in the face of the new Judicial Policy, developed under the your guidance of Chief Justice Iftikhar Chaudhry. The policy had stipulated a maximum of six-month time bar adjudication of civil cases.

The Chief Justice, stated on a number of public occasions, including his speech to the international jurists' conference in April this year, his commitment to ending the backlog through quicker settlements. The policy had its impact as well but the load of cases keeps mounting with the law and order deterioration, abuse of law, and lots of crime as well as incidence of terrorism and militancy. Also, frivolous litigation involving government departments, delaying tactics by lawyers, officials and the police in particular, add to the burden of the huge pendency at courts.

This influx of public interest litigation in fact puts limits to the physical capacity of the courts. It also entails the question as to whether the higher judiciary – by stretching itself into what is usually the Executive’s domain ( check on prices, on the nature of TV programmes, or cases of graft involving individuals , for example) runs the risk of losing sight of its primary function i.e. serving as the guardian and interpreter of the fundamental human rights?

What critics as well as lawyers such as Yaseen Azad see as a relentless pursuit of the NRO cases has given birth to a perception – regardless of whether right or wrong - that the highest court is driven by political motives. This of course undermines the esteemed and extremely important office that you and your colleagues hold. One must underline that while the Supreme Court’s pro-active moves on various counts came across as a big and unprecedented consolation for the hapless millions that continue to suffer under the ruling elite’s abuse of power, poor governance and are craving for justice in corruption-plagued system (at the lower court levels), the Court needs to guard against the hazards that its activism brings with it; the possibility of crumbling under the increasing pile of cases without taking crucial public interest cases to their logical end! Do the highest courts get themselves involved in constitution of commissions (media, memo, Abbottabad) or act as consumer protection cells?

The people of Pakistan will stand in gratitude to Justice Chaudhry and his

colleagues. At the same time their expectations of the senior judiciary have also grown. These brave judges can have their names written in golden letters in history if they manage to legally question and trim the discretions/privileges and immunities that the ruling class uses for self-preservation and self-promotion. All the honourable justices will do a great job by setting new legal benchmarks for accountability of the public representatives. At the same time, people at large will also be greatly indebted if the Supreme Court could creating mechanisms which could help in minimizing the police and official high-handedness and also facilitate judges in clearing up the massive backlog at all levels of judiciary. Ensuring quick speedy and inexpensive justice, accountability of the ruling elite and ensuring rule of and respect for law must be the end goal for the Supreme Court which at the moment seems at the risk of getting buried under the ever increasing number of litigation that may not necessarily fall under its purview.

Primarily, the exceptional treatment of the VIPs – immunities, and protection to even ill-gotten money – imperils the basic security of the common Pakistani and runs contrary to the fundamental principle of equal citizenry. While the moneyed big-wigs and influential movers and shakers get away with the breach of law or laundering illegally acquired finances, and abuse of power the commoners continue to suffer the consequences of this preferential treatment. Why should a handful of people be above law and accorded special treatment, while universal charter of human rights as well as the constitution of the Islamic Republic of Pakistan considers all citizens equal? (Imtiaz Gul is the Executive Director of the independent Centre for Research and Security Studies, and the author of the forthcoming book Pakistan : Before and After, Roli Books, India) Respectable Chief Justice of Pakistan.

The writer is executive director of the Centre for Research and Security Studies  

Email: imtiaz@crss.pk