Supreme court vs parliament
March 6th, 2011
The Supreme Court has rejected a parliamentary committee’s decision not to grant extensions to six high court judges and directed the government to issue the appointment notifications. A four-member bench of the apex court says the committee’s decision is “contradictory to the Constitution”. The parliamentary committee (PC) was set up in the 18th and 19th Amendments, with a bipartisan consensus in parliament, keeping in view the power and sensitivities of the Supreme Court.
The PC had denied one-year extensions to four additional judges of the Lahore High Court and two of the Sindh High Court “on the basis of assessments provided by the respective chief justices, based on the judges’ conduct and character”. The honourable Supreme Court has jurisdiction of review under the Constitution and has adjudged the reasons given by the PC for rejecting the extensions as not admissible.
There are factors to be studied to find out why the decision might be considered controversial. The matter is related to the developments in the wake of the lawyers’ movement and the restoration of the Supreme Court under Chief Justice Iftikhar Muhammad Chaudhry. A polarity developed between the executive — which had dragged its feet on the question of restoration, after earlier agreeing to it — and the judiciary. After that, because of the misconduct of some elements within the lawyers’ community, there was a split within the legal community itself, which then led to a change in the elected leadership of the Supreme Court Bar Association in favour of critics of the Supreme Court’s assertion of authority.
After the Supreme Court passed a unanimous resolution to hand out extensions to two of its retiring judges, there was criticism from some legal quarters. The critical lawyers referred to the inadvisability of relying on ad hocism in the light of the famous Al Jihad judgement, but the fact remained that ad hoc appointments were allowed by the Constitution. In the case of extensions being granted to six high court judges, the PC gave a split decision, not agreeing with ad hoc appointments.
Since negative remarks recorded by the concerned chief justices of the concerned high courts have become known, one can understand why the committee was unwilling to okay the cases. Some remarks were as follows: 1) Not at all quick in the disposal of work; 2) A ‘novice’ in legal issues and slow; 3) Not inaccessible, indulging in loose talk, rigid and prejudiced; 4) Status-conscience, moving in ultra-modern circles, indifferent in conduct to the public. The Supreme Court has adjudged the above reasons as non-applicable because the only way a judge at the higher judiciary can be subjected to any rejection is through scrutiny at the Judicial Commission provided by the Constitution. It should also be noted that inside the PC, the political representatives were split over the rejection. The PML-N was not on board with those representing the PPP. From this angle, the dice was loaded in favour of the honourable Court and its unanimous resolution to use ad hoc judges to take care of the load of work.
Some observers have noted that, in principle, ad hocism in judicial appointments is not a good thing, either on the part of the executive when it has the authority to induct judges, or the Court itself. They cite the case of India where ad hoc appointments at the Supreme Court are unknown. Given the current situation in Pakistan, unfortunately, public focus on the ‘independence’ of the judiciary — long absent under authoritarianism of all sorts — has politicised the conduct of the Supreme Court.
The best course is the middle course, where a balance is struck between the functions of the executive and the judiciary. Any trespass of one into the domain of the other — even when public outcry demands such trespass — will come to grief. And that includes judicial ‘activism’, even when it means to set the flaws in the executive function right. That is why in all judiciaries whose history is known to the world, there is a subtle process of give-and-take between the various pillars of the state — with respect for the Court accepted as the foremost obligation of everyone.
Madness unending
March 6th, 2011
We are slowly but surely becoming accustomed to madness. The sound of bomb blasts that rip through cities and decimate life is a familiar one. People in all major cities recognise it, and this is particularly true in Khyber-Paktunkhwa, which has borne the brunt of terrorist violence over the last many years. Any thoughts that violence could be receding have been shattered over the past few days.
The latest blast took place on March 4, at a mosque close to a shrine in the Akbarpura area, as people were eating food served at the place of worship following Friday prayers. The explosion was the third to take place in four days in the province. A timed device is reported to have been used, killing 11 people and injuring 43. The deaths are tragic and the sense of peace in people’s lives has been badly shattered; there is a constant feeling that they can be struck down anywhere and at any time and there is a very real threat to a way of life that has continued for centuries.
It is impossible to read into the motives of the men who planted the bomb and then detonated it at a time when maximum damage could be inflicted. But it seems plausible that their intention was to target the shrine as a place of Sufi worship that represents an entirely different kind of life to the one the militants favour — a life that promotes tolerance and the value of all human life. We have seen this menace growing rapidly over the past few years. The new wave of bombings in Khyber-Pakhtunkhwa represents an acceleration in the violence. Lives are unsafe than ever before, a new sense of danger lurks everywhere and talk of the extremists being on the run, as claimed by those in government, is hard to digest. No aspect of life is safe, everything is in flux and this sense of insecurity is having a growing impact on the lives of people everywhere. The question they all ask with one voice is when they can gain relief and if life will ever return to what is was in the times before militants took a hold on everything we know as good in our country.