At the altar of speed

VARIOUS quarters are promoting the idea of a new federal court that will oust the jurisdiction of the high courts in all commercial and tax matters. The proposal has been vehemently opposed by the bar councils across the country that see in it an attempt to create a parallel judicial set-up under the overbearing influence, if not control, of the federal government. The Law and Justice Commission, headed by the Chief Justice of Pakistan, has also expressed reservations and urged the government to explore other, more obvious reforms within the existing system.

While the justice system in Pakistan today stands accused, justifiably, of delay, the proposed remedy is nothing short of an assault. It perhaps needs reminding that deterioration in the quality of adjudication can never be made up by speeding up the disposal of cases. Delay apart, it is the quality of adjudication that has brought unwanted attention to the Pakistani judicial system around the world. The judgments in the cases of Rupali, Hubco and Westinghouse, the last delivered in double-quick time by the court concerned and subsequently raised as an issue by the US State department with the Pakistan government, are reminders of the unexpected hazards that foreign investment can face in Pakistan.

The practical argument, distinct from various constitutional objections, against the creation of the proposed federal court is simple but fundamental.

Firstly, no separate court is required given that each high court has on its bench judges who, prior to elevation, were leading commercial and tax lawyers and have distinguished themselves through their judgments in these matters. At present the special abilities and experience of these judges are not being fully utilized in so far as they are made to spend a large part of their time in dealing with civil, family or even criminal cases.

There is, however, no reason why dedicated commercial benches cannot be set up within the high courts. Whatever the federal court can achieve dedicated commercial benches within the high courts can achieve better. The federal court will attract as judges and lawyers largely the second and third tiers of the talent available, as is the case with the existing banking courts and the tax tribunals. This will necessarily lower the quality of adjudication with consequent damage to investment promotion and justice.

This will come at a time when changes in the legal profession are making greater human resources available than at any time in the past. Over the last decade an unprecedented number of young men and women with legal qualifications obtained from the better institutions of higher learning around the world have entered the side of the legal profession that has been dubbed ‘commercial’ by the proponents of the federal court.

Plans are also afoot to reform and upgrade the quality of local legal education. These young persons do not deserve to be banished from their practice to a second-rate specialized tribunal for the rest of their careers with only rare appearances before the high courts. The natural consequence of this will be the arrest of the present fluorescence at the litigation bar. More of the new entrants will gravitate towards non-litigation transactional work. This will serve to further depress the quality of the output of the courts.

It is through general procedural reform and induction into the judiciary, in due course, of this set of lawyers that commercial dispute resolution and the judicial system at large will derive strength and efficiency. The recent elevations to the Lahore High Court of three leading commercial lawyers of the day are a case in point.

Secondly, the creation of the federal court will leave unaffected disputes involving contract enforcement, arbitration and title to property that make up a large proportion of the disputes that must be considered commercial. Any attempt to transfer this jurisdiction to a specialized court will not only create serious problems in distinguishing commercial contracts and title disputes from those not considered commercial but will make that court largely indistinguishable from an ordinary civil court. It is perhaps for this reason that even the proponents of the federal court have not suggested that jurisdiction regarding contract enforcement or title determination be moved away from the ordinary civil courts.

Consequently, even after the creation of the federal court the need to improve the capacity and efficiency of the ordinary civil courts as well as the high courts will remain a matter of paramount importance. Higher salaries that attract better talent to the lower judiciary and additions to the numbers of judges at all levels are the only effective response to the problem of delay in the judicial system. The idea of the federal court is, at best, a diversion of focus and resources from the real issues that must be addressed.

Thirdly, the removal of commercial work from the high courts will mean that in the future judges elevated to the Supreme Court from the high courts will bring to the apex court no experience of commercial work. Yet they will be expected to act as the court of last resort in deciding appeals against decisions of the Federal Court.

In order to ensure the presence of judges with a background in commercial law, appointments to the Supreme Court will necessarily have to be made from outside the high courts and in numbers large enough to cater for commercial appeals from all across the country. This will mean fewer elevations from the high courts unless the total strength of the Supreme Court is increased. Have these matters and the implications they generate been thought through? It appears not.

Justice is a function of three primary elements: intellectual capacity, integrity and speed of adjudication.

An assessment of the impact of the federal court on the intellectual capacity of those who will come to adorn the court may readily be made. Anyone who knows anything about the legal profession knows that hardly anybody from amongst the leading commercial lawyers of the country will agree to become a federal court judge, while over eighty per cent in the same group will accept elevation to a high court. The reasons are obvious. The high courts continue to wield great respect and authority.

High Court judges expect to be called upon to examine matters of vital constitutional and social import and to carry out judicial review of legislative as well as executive acts of the state. The federal court will be a specialized tribunal that will enjoy a status little above that of the customs tribunal, perhaps equivalent to that of the federal service tribunal. In addition, it will be the creation of a repealable statute and not of the Constitution.

The federal court bill provides for the appointment of retired judges of the Supreme Court and high courts below sixtyeight years of age as judges of the federal court. Also held eligible are other persons qualified to be judges of the high court — district judges and advocates of more than ten years standing — along with government officers in BPS 21 and above.

Given that at any one time only a very small number of retired judges of the Supreme Court below the age of sixtyeight, especially those with a reputation in commercial and tax law, are likely to be available it is clear that appointments to the federal court will be made largely from among the cadres of the lower judiciary, the bureaucracy and retired judges of the high courts. How are these categories of possible appointees likely to fare?

If the proposed federal court is in fact set up, judges retiring from the high courts in the future will possess no experience of commercial work. Even at present there exists a sizable pool of retired judges whose main exposure as lawyers and also on the bench was mainly to criminal matters or general civil litigation. Retired judges with this background have often been appointed to the customs and sales tax tribunal as well as the lower banking courts. Those appointed to the customs and sales tax tribunal have either adopted a policy of general deference to the views of the officer of the Central Board of Revenue on the bench or else have gone off on a limb with little understanding of the relevant laws.

Those appointed to the banking courts have scarcely done better. Not one case has been decided within the statutorily prescribed period of 90 days. When cases are finally decided leave to defend is generally refused to the borrower with even legitimate defences. Appointing retired judges with little exposure to commercial matters to the federal court and expecting them to re-invent themselves after the age of superannuation would be unfair both to the judges concerned and the litigants whose fate they will be called upon to determine. Will this state of affairs please the foreign investors?

The proposal to appoint government servants in BPS 21 and above to the federal court is probably inspired by the belief that tax collectors, public sector bankers and administrators will provide a complementary dose of ground reality to the presumably cloistered worldview of district court and retired high court judges. The fact that the attachment to the state of the officers to be appointed to the federal court might compromise their independence in a manner not permitted by the Constitution is a matter that does not appear to have bothered the proponents of the federal court. The visionaries behind the federal court have perhaps been emboldened by the fact that the tax tribunals have not been struck down so far despite the presence of serving CBR officers on the bench and despite several challenges before the high courts.

As serious as the lack of independence on the part of government functionaries will be their lack of legal training and professional experience. It is not for nothing that the world over the judicial function at a level as high as that of the proposed federal court, is invariably vested in those with legal training and experience. A judicious mindset is the result of years of honing. Not very long ago the Sindh High Court noticed, in Philips Electrical Industries v. Pakistan, the lawlessness that has often prevailed in the tribunal. Where is the need to re-enact tragedy on a larger scale?

Salt has lost its taste

INDIA should have been in the midst of celebrations over the 75th anniversary of Mahatma Gandhi’s Salt March which elevated the enslaved country to the height from where it could defy the mighty British empire.

Instead, the country witnessed ugly personal and political wrangling over the formation of governments in a couple of states. The unfortunate coincidence was that it all happened around March 4, the day when Gandhiji started the march to articulate the principles like common man’s right to manufacture salt.

Why hark back to those days now when politics of power has practically ousted all those values? Still, I imagined that the Congress would have been chastened after being in the wilderness for years. When Congress president Sonia Gandhi said that her party would go back to the “basics,” and subsequently declined even the office of prime ministership, I was encouraged to believe that the Congress was again on the track. Although I saw too many familiar faces of the emergency days, I felt relieved after the party had said “sorry”.

The jolt came when the Goa governor asked the Congress with a dubious majority to form the government there. Ultimately, he took the same decision which he should have on day one: impose president’s rule and keep the state legislature in animated suspension. But why did he go wrong initially? Or, who forced him to go wrong?

The Jharkhand governor should have been more circumspect. The Congress had already burnt its fingers in Goa. But he too was least concerned. Even when the BJP-led alliance paraded before him 41 members from the house of 81, he preferred the Congress combination of 40 on the ground that it would give a firmer government. This was his thinking.

But the governor is a constitutional head and he cannot wish away the fact of numbers that determine a majority. Why did the governor act that way? Who spoke to him from Delhi? Some sort of suspicion arose because of the presence of Priyaranjan Dasmunshi, a central minister, at the Raj Bhavan when the governor was going over the exercise of determining who should be forming the government.

I have personally known both the governors, S.C. Jamir in Goa and Syed Sibley Razi in Jharkhand. They are not given to histrionics. Nor do they act on the spur of the moment. Both are old Congress hands who did not soil their reputation even during the days of authoritarianism in the party. Someone must have communicated to them to act the way they did. Who would have been at the Delhi end?

I am sure Prime Minister Manmohan Singh and Sonia Gandhi did not call. Maybe, someone used his or her name, probably only Sonia Gandhi’s. Manmohan Singh has said that the governors acted on their own. It is difficult to gulp this explanation. It is important for the Congress to get at the bottom of this because the party went awry in the same manner some years ago.

Indira Gandhi was responsible for many things. But certain things were done in her name. She had to own them. Slowly and gradually, the Congress slid into a situation from where the emergency appeared the only escape route. Is the party slipping once again? However, the nation was saved in Bihar from a moral obliquity. The Congress leadership realized that placating Laloo Prasad Yadav was not worth risking another onslaught on its integrity.

In protest, he absented himself from the cabinet meeting where the decision to impose president’s rule was taken. With 26 seats in the Lok Sabha, he had a clout in the ruling Untied Progressive Alliance (UPA). But its chairperson Sonia Gandhi refused to be blackmailed and did not budge.

I do not know whether the Congress realizes it or not, but its initial installation of governments in Goa and in Jharkhand have let the BJP occupy within 10 days the space which it had lost during its six-year-long misrule. The party boasts that both the developments have given it mileage. In democratic India, there can never be a Tiananmen Square. But what happened in Goa and Jharkhand are the type of incidents which the Congress government, like the regime in Beijing, cannot erase from people’s memory. This is the cross the Congress will have to carry for a long time to come.

The BJP that was making no headway either in the name of Hindutva or the mandir suddenly got a tailor-made situation to exploit. It paraded itself as the wronged party. But it was no a secret how the BJP the caretaker BJP in Jharkhand used the state machinery to collect independent MLAs and supervise the rest of the flock. It was obvious that the BJP wanted to keep attention focussed on Jarkhand, more to embarrass Delhi than to think of methods to avoid such situations. Once again the game is the same: the BJP does not want the Congress-led UPA to settle down at the centre.

BJP president L.K. Advani, who claims to have built the party from scratch when it parted company with the Janata in 1979, proposes to use parliament as the place to show the government in bad light. The decision by the National Democratic Alliance (NDA) not to allow the parliament function was taken even before the Goa imbroglio. Advani says openly: “In the present situation the government should not expect cooperation from us (in parliament’s functioning),” as if it is their birthright to disturb the nation’s highest elected forum.

Rahul Gandhi and his young colleagues have a point when they say that political developments in states should not come in the way of parliament’s working. But he should know that his Congress party played the same card when the NDA was in power at the centre. He would do service to the country if he were to persuade his mother to declare that henceforth the Congress would not stall parliament even when it sat on the opposition benches.

Indeed, hypocrisy of political parties was evident after the state elections. Both the ruling BJP and Laloo Yadav’s Rashtriya Janata Dal lost the popular verdict. The hung assemblies in the two states showed it. But they were the ones who wanted power at any cost. In truth, they should not have laid a claim to form the government. Goa, Jharkhand and Bihar have proved once again that power has come to be the sole aim of political parties.

If the general cynicism, particularly in the youth, has to be met, leaders will have to bring principles to the fore. They should realize that wrong means will not lead to right results. It looks as if on the 75th anniversary of Gandhiji’s Salt March, the salt has lost its taste.

The writer is a leading columnist based in New Delhi.

Challenge of rebuilding Afghanistan

AFGHANISTAN is the only country in the world that has had death and destruction rained on it by both the Soviet union and the US in the post-World War Two period. Exercising the Brezhnev doctrine, the Soviet Union intervened in late 1979, to protect the communist regime, but withdrew 10 years later after suffering defeat at the hands of the Afghan people whose will to resist foreign conquest it had underestimated.

The US, which availed itself of the opportunity to frustrate Soviet expansionism, also withdrew and the country witnessed a further destruction of its cities as ethnic militias fought to gain control and threatened the territorial integrity of the

country.

The Taliban, who were largely Pushtun-based, emerged with the twin aims of safeguarding the territorial integrity of Afghanistan, and of establishing a Shariah-based system of governance. As they were virtually isolated, they came under the influence of the Al Qaeda movement, that was organized by Osama bin Laden, a Saudi dissident committed to defending the interests of the Arab and Islamic world. Bin Laden had been used by the US to mobilize Islamic sentiment against the communists, but once the Soviet Union withdrew, it lost interest. He, therefore, sought to build up a terrorist network to fight against US domination in the heartland of Islam.

If other major players had been present in Afghanistan, perhaps the Taliban would have acted with greater regard for international realities. However, Osama bin Laden came to have a dominant influence, so that when the 9/11 terrorist attacks took place, the US response took the form of an attack on both Al Qaeda, and its host, the Taliban regime in Afghanistan. The cumulative effect of nearly a quarter century of destructive warfare is that Afghanistan has suffered from the highest level of destruction of any country during the 20th century. Nearly 2.5 million persons were killed, six millions displaced, while 12,000 villages were destroyed. Agricultural production fell by 60 per cent, while half of all industries were destroyed.

According to Afghan economists, there was an unprecedented increase in the poverty level, with 50 per cent of the people homeless, and the already poor infrastructure destroyed.

Though the US attack lasted for a brief period, it resulted in immense destruction owing to use of tactics and technology that pulverized the Afghan resistance, specially, as the Northern Alliance joined the US-led attack. The US attack not only had UN backing, but the support of virtually the entire world community, which joined the coalition against terrorism. As a result, the world community took up the tasks of establishing democratically elected government in the country and rebuilding a country that had suffered unprecedented destruction over a quarter of a century.

Indeed, the task of rebuilding has assumed urgency, as nearly a third of the population has been uprooted, and the country’s ability to meet its basic needs virtually destroyed. Though the world community responded generously to appeals for funds for reconstruction, pledging over $ 21 billion for relief and the rebuilding of the country at the Tokyo conference on the Afghan reconstruction strategy, actual progress has been limited, with many pledges unfulfilled. The poverty and suffering of the great mass of the Afghan people have yet to be addressed, and mechanisms of coordination and implementation established.

To help understand the challenges of reconstruction, and to promote more effective measures that need to be taken at the national, regional and international level, the Karachi University organized a recent workshop with the collaboration of the Hanns Seidel Foundation. The special feature of the workshop was that apart from Pakistani and international experts, several Afghan scholars and specialists also participated, making the deliberations particularly valuable.

There is need to draw conclusions from the deliberations of the workshop in which there was a very useful identification of the tasks ahead for the national government, the regional countries and the international community. The internal scene was carefully analysed, with special reference to the role of the warlords, and the importance assumed by the drug trade, which threatens the international campaign against drug abuse.

The closing session of the workshop summed up the conclusions, a useful exercise since the rebuilding of Afghanistan is an immediate challenge, for which the necessary conditions are just beginning to be created. The election of the president had been completed, but the parliamentary elections are likely to present a more difficult challenge, with ethnic and local factors requiring that an effective law and order set up be put in place.

To end the tensions unleashed by a long period of civil strife, the creation of a truth and reconciliation commission to restore harmony and unity was suggested. Other internal measures recommended were the recognition of merit and transparency in establishing a new setup, and proper attention to creating a new judiciary. Situated at the junction of three major regions of Asia, namely West, Central and south Asia, it was urged that Afghanistan should not to become a transit point for harmful trends and traffic. On the other hand, its location could make it the hub of trade in a large and resource-rich region.

There was good advice in the conclusions drawn for Pakistan, which was to improve facilities for transit trade by Afghanistan and other land-locked countries. Given the residue of grievances over its role in Afghanistan Pakistan was also advised to adopt confidence building measures (CBMs), and adopt a helpful attitude in developing public utilities that were still lacking in Afghanistan. Pakistan could also facilitate the admission of Afghanistan into Saarc.

The US was called upon to continue its financial and general support to Afghanistan, focusing on the drug problem, and on human rights. There was need for it also to lower its dependence on the warlords, and to help build up Afghan civil society as the best hope for bringing stability and accountability to Afghanistan.

Finally, the UN, which was actively involved in Afghanistan, had to reinforce its role in Afghanistan, notably by enabling the various specialized agencies to play their role in dealing with children, health, education and urban development. It also had to play a role in keeping Afghanistan united, and to use its expertise to help build projects and programmes that would lift Afghanistan, and to carry reconstruction to remote provinces.

There was general agreement on the need to spread the rebuilding process to the distant parts, and to strengthen Afghan security forces so that they could enable better distribution of all public funding 452 per cent of which was currently being spend in Kabul.