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The judiciary’s ‘overdrive

By Imtiaz Gul

 The News, July 20, 2012


Pakistan is currently aflush with two opinions about the senior judiciary; its supporters hail the current conduct of the court as benchmark-setting but detractors begrudge the Supreme Court’s “activism” vis a vis state functionaries and institutions as “political and selective.” Some dub the government-judiciary stand-off as the result of “oversized egos”, while others call it a legitimate quest for establishing the rule of law in a country, largely run by civilian and military kleptocrats.

An even more alarming argument emanating out of the current ruling elite directed at the Supreme Court practically suggests that it stop its “over-drive” against the PPP and the system. Before dilating on whether it is an overdrive against the PPP, a conspiracy against the system, or a step in the right direction, let us recall what Chief Justice Iftikhar Chaudhry told lawyers on July 12 in Quetta.

“I don’t care of consequences, even if I am fired at, I don’t care. We all believe that only and only through rule of law can this country survive and we are all ready to even give our lives for that.” On another occasion, the CJ declared that “all citizens are equal before the Constitution and the Superior Courts have administered justice based on this very principle.”

This pronouncement essentially resonates in the preamble of the Constitution of Pakistan, which guarantees fundamental human rights including “equality of status and opportunity, equality before law, social and political justice.” Beside the judiciary, public representatives, too, publicly keep repeating these constitutional guarantees to underline their personal commitment to fundamental rights.

If we all believe in the preamble of the constitution – which also reflects the universal declaration of human rights – why then take umbrage at the Supreme Court’s conduct? What is wrong if the SC is attacking a system that is based on privileges and immunities for a few chosen ones?

Given that all this is part of the Constitution but if weighed against the principle of equality of status, these privileges and immunities stand out as discriminatory to the common man and tilted heavily in favour of those elected by the common man. For a person who has been lucky to observe the governance and legal systems of some of the western societies, I have no hesitation in endorsing the Supreme Court’s attempts to set new benchmarks for the rule of law with a view of forcing the ruling elite into respecting it. I personally believe that even if the judges are taken over by an inflated ego and misplaced pride, we must all help them clip the favours that the ruling elite enshrined into the constitution for self-preservation and enrichment.

The system put in place by a miniscule class of kleptocrats is not only violative of the basic spirit of justice and equality but also a socio-politically divisive factor – stratifying citizens into the privileged and the non-privileged ones. The desire to rub off these divisions is a logical consequence of commitment to the rule of law and hence the Supreme Court needs to stay the course.

But this course of conduct also requires caution lest the apex court gets buried under an ever increasing number of public interest litigation; the Court’s annual report covering the period between April 2010 and December 2011, speaks of about 8,220 pending cases at Islamabad. Total pendency at Karachi, Lahore, Peshawar and Quetta registries during the said period stood at 9062. Until May 2012, another 650-plus cases were added to the list of the pending cases (as reported in the monthly Herald). This brings the total pendency to 17,246. The latest addition to this list is a suo motu on the so-called obscene TV shows.

While the Supreme Court’s pro-active moves come across as redeeming for a hapless nation reeling under poor governance and crying for justice in a corrupt judicial system (at the lower court levels), it must guard against the hazards that its activism brings with it; the possibility of crumbling under the pile of litigation without taking crucial public interest cases to their logical end.

The highest courts can ill-afford to stretch themselves into the executive’s domain. Neither can the courts solve all problems. What they can certainly do is to review and redefine the privileges that the public representatives enjoy at the cost of their constituents. This “over-drive” must continue. Only in the rule of law, and abolition of immunities, does this country’s salvation lie.

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

Email: imtiaz@crss.pk