Boot on the other foot by Najam Sethi

A number of legal interventions are threatening to unleash unforeseen consequences for state and society in Pakistan.

The Supreme Court has ordered the PMLN government to register a case of treason against General (retd) Pervez Musharraf and prosecute him on a fast track basis. But it is a moot point whether, in principle, parliament and its administrative arm should have the right to make such a powerful determination or the SC may compel the government to do its bidding. Indeed, legal tradition holds that parliament makes laws, the executive or government upholds them by invoking prosecution and punishment, and the courts determine their application to subjects. In this case, the matter has been complicated by four countervailing factors. First, there seems to be a vested interest on the part of the SC to punish the man who rendered it impotent in the past. Second, there seems to be a vested interest on the part of the government not to destabilize civil-military relations and render it impotent in the future. Third, there seems to be a select application by the SC to the one person of General Musharraf rather than to the military coterie that made a collective decision and implemented it. Fourth, the SC is fixated on the mini-coup of November 3, 2007, rather than the major-coup of October 1999. In the past, it should be noted, the maximum intervention of the SC in such political matters was limited to a ruling on a specific reference before it by the government - as for example in the mid 1970s when the ZA Bhutto government applied to the SC to confirm the "treasonable" credentials of the National Awami Party before deciding to ban it.

The SC has also challenged the traditional right of the government to enforce budgetary provisions from the day they are announced rather than from the day the bill is passed in parliament after a debate. It has trounced a 1931 Act that legitimizes provisional collection of taxes on the basis of the philosophy that parliament has the right to delegate its authority to government. Such provisions exist all over the democratic world. They are meant to facilitate economic efficiency by thwarting speculators and profiteers who seek to exploit the space between the announcement of a law and its actual passing in parliament. In the current case, the SC's decision has cost the treasury about Rs 10 billion in lost revenues, apart from the losses incurred by assessing imports at previous lower duty rates instead of the higher ones proposed in the budget. If this ruling is not overturned in review appeal, the government's financial writ will be severely curtailed in time and it will even affect its international obligations, as for example in relation to the anti-dumping laws ordained by our accession to the General Agreement on Trades and Tariffs (GATT).

The SC is now examining the scope of the Army Act of 1952. As it stands, the High Courts have no jurisdiction in matters of soldiers and civilians covered by the Act. Any civilian or soldier detained by the army under this Act cannot be heard by the HC regardless of the merits of the case. Similarly, the police cannot detain, let alone prosecute, a soldier and must hand him over to the military immediately after apprehending him. The SC may hear such cases only if they are of "public importance" and relate to fundamental rights. The issue is hanging fire because of the public importance attached to the rights and plight of "missing persons" in Balochistan. But it has become complicated since armed insurgents, separatists and sectarian terrorists alike have sought to take advantage of the situation across the country. The SC considers such elements alike in terms of public importance and fundamental rights. But the military considers them all anti-state terrorists without fundamental rights to whom the full repressive apparatus of the state must be applied. The problem is that if the Army Act is diluted it will open the floodgates to rampant terrorism. If it isn't, innocent citizens may be persecuted for wrong political reasons or misplaced national security considerations.

The SC is also taking a keen interest in government policy regarding postings and transfers of civil servants, professional consultants and experts. Indeed, it has gone so far as to order the government to appoint a committee of neutral and credible persons to scrutinize and appoint the right man for the right job. On the face of it, in order to stop cronyism and corruption, this seems right and proper. But the fact is that it curtails the executive's right to take such decisions in light of its own political requirements.

In the past, the executive was rampant and unaccountable. Now the boot is on the other foot. The need of the hour is to strike the right balance between public and government interest, between those who make laws and those who interpret their scope and spirit.

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