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| September 26, 2006 | Tuesday | Ramazan 2, 1427 |
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President’s autobiography
Blessings of judicial activism
BEFORE partition, the judicial system in the subcontinent was provided by the British government that did not interfere with the personal laws of its subjects. Muslims were governed by their laws of inheritance, matrimonial affairs, custody of children, pre-emption in purchase and sale of land, etc, as rooted in their religion. Likewise, Hindus, Parsis and Christians were governed by their own personal laws.
THE countrywide power breakdown after the national grid was knocked out on Sunday calls for serious stocktaking. Punitive action against those responsible should follow if warranted by circumstantial evidence being collected as part of the official inquiry now underway. This was the fourth major power breakdown to hit the national grid since 1999 and the longest in the country’s history. It took the Water and Power Development Authority more than 12 hours to restore power supply to normal levels. Wapda has put the cost it incurred in losses, as a result of the massive outage, at Rs200 million. The figure for the private sector must be in hundreds of millions, with production in major industrial hubs like Lahore, Faisalabad, Multan, Gujranwala, Sialkot and Hyderabad grinding to a long halt, and disruptions caused in Karachi on account of resultant load-shedding. The minister concerned and the prime minister were quick to order an inquiry into the breakdown; but scepticism remains as to whether the report of the inquiry would ever be made public, let alone action initiated against those found negligent in discharging their duties. No inquiry into the previous three shutdowns of the national grid has seen the light of day.
As people from Peshawar to Hyderabad and from Quetta to Lahore braved the power outage, the rumour mills were alive and active. They spun out all sorts of stories about what had caused the massive power breakdown. Practically as many ludicrous and far-fetched conjectures began to circulate as there were wagging tongues. This happened because no senior Wapda or government official was available to explain what had happened — for hours after the national grid had been knocked out. Even the usually well-informed among the public fell for the rampant ‘unconfirmed’ reports in circulation in the absence of an official word from Islamabad or even Lahore, the latter being Wapda’s headquarters. The tripping of the national grid and what happened in its aftermath exposed the fragility of the confidence the people have in the reliability of the system. In a sense, the situation on Sunday also reflected the fragility of one-man rule, with no one feeling strong enough to step in and fill the gap and handle things at a time of crisis with President Musharraf long out of the country. For many, it was simply an opportunity to vent their anger at the government by resorting to all sorts of rumour-mongering. Given other political aspects of national life that can be summarised simply as bad governance, a crisis such as Sunday’s massive power breakdown could spiral out of control, intensifying popular discontent.
It should be remembered that there are more serious economic ramifications resulting from power shortages and the all too frequent failures of the distribution and transmission systems. Both Wapda and the Karachi Electric Supply Corporation are found woefully lacking in devising effective ways and means to tackle the on-going power crisis. The resort to load-shedding to save the system from overheating and tripping cannot be a permanent solution. As demand for electricity grows, overheating of the existing power infrastructure will lead to more frequent trippings and shutdowns. Neither of the utilities has in place a long-term maintenance or capacity enhancement programme, with power losses blamed on rustic distribution and transmission lines alone running as high as 40 per cent in peak season. In the case of the KESC, it is all the more incomprehensible why the utility was hurriedly privatised without the government having negotiated a capacity-building programme with the buyer. The price the people and the Karachi-based industrial and commercial sectors are paying as a consequence of frequent power failures and cuts is all too evident. These and other failures of political and economic aspects of governance are least likely to restore investor confidence in the country.
It is disturbing to know that instead of shouldering the responsibility, the government has opted for a further pulling out of the power sector. The revised power policy is aimed at inviting independent power producers to fill the gap between supply and demand. If pursued in disregard of the consequences, especially in the light of experience with the existing IPPs, it will only make power prices go further up in the years ahead. This is because in the absence of cheap alternative power sources, thermal power is the only readily available means to meet the rising demand. The government has done little to explore the possibilities of bringing on line the untapped, massive coal reserves in the Thar desert of Sindh; possibilities of energy generation using solar and wind power have fared no better in the official scheme of things. These call for serious consideration. A long-term national power generation and distribution infrastructure-building strategy is overdue. The government must not sit on these and other possible options while waiting for the Bhasha dam to be constructed or counting on the so far elusive inter-provincial consensus on the construction of Kalabagh and other big and small dams.
THE much hyped In the Line of Fire, President Pervez Musharraf's memoirs, could well go down in the Guinness Book of Records for many 'firsts' which it appears set to achieve. Probably no other book has had such a large amount spent on its promotion — much of it at state expense — as the president's autobiography. Although projected as an official visit to the US, the trip is increasingly appearing to be a book promotion launching tour. Few authors enjoy the privilege of 70 odd companions, including 10 federal ministers, travelling with them on such an occasion, which the publishing industry regards as no more than a marketing tactic. In this context, one would not be wrong to wonder if the president's much publicised "bombed to the Stone Age" comment in a CBS interview was also designed to excite curiosity about the content of the book. For once President George Bush had it right when he interpreted President Musharraf's refusal to elucidate his comment, as "buy the book is what he is saying". After all, the publishers of the book, Simon & Schuster, are the publishing arm of CBS which conducted the interview.
There is also a serious political dimension to a sitting president writing a book on his version of politics, strategy and foreign policy in the first person. Apart from the author's own "master and mentor", President Ayub Khan, no world leader of any standing has penned his autobiography while in office. Others have recorded their life experiences only in retirement. Even in Pakistan when bureaucrats and army generals display a love for the written word, they take up the pen with an unprecedented force of eloquence only when they step down. Is the president entitled to take a public stance on important issues some of which may still be officially classified and state secrets — at least for 30 years under the law? Obviously, his will be a one-sided account and in the absence of authentic and documented information on the events about which he has written, the book will stir controversy. Worse still, each and every word can have a profound impact on state policy and the country's external relations, coming as it does from the presidential pen. Maulana Azad understood the implications of the written word better. He instructed his publisher not to print some sensitive passages in his book India Wins Freedom until 30 years after the author's death.
The British gave us a system of courts, procedural laws and some substantive laws in codified form. For their own use, they have codified laws made by parliament in Britain and rigidly followed conventions and precedent judgments. The British are conservative by nature, but whenever their laws are silent and provide no remedy in a particular set of circumstances, they invoke equity, which means the use of good conscience and principles of natural justice and fair play.
This has become prominent as a different branch of law and they have separate courts of equity. In fact, equity lays down the foundations of judicial activism so that courts do not feel helpless if the law does not allow remedy for any particular reason and can find a way out in order to give remedy to the aggrieved party.
When the British left in 1947, the emerging countries of India and Pakistan were allowed to follow the British legal order in the shape of the Government of India Act 1935 to be read with the Indian Independence Act 1947 until both countries drafted their own constitutions. Pakistan made its first constitution in 1956. Until then, it was governed by the old British legal order.
The first case in court that demonstrated judicial activism was that of Maulvi Tamizuddin Khan (PLD 1955 Sindh 96). The Chief Court of Sindh interpreted the words “assent” and “dominion” in a broader and more liberal manner and used judicial activism. It gave a landmark judgment to the effect that the governor-general had no power to dismiss the constituent assembly, which was duty-bound to prepare a constitution for the country.
The Federal Court set aside the decision of the Chief Court and upheld the order of the governor-general. It is said that the draft of the constitution was ready to be announced on December 25, 1954, but the governor general dismissed that assembly on October 24, 1954, to avoid the curtailment of his powers of dismissing the government of the elected prime-minister. The Federal Court held that a writ jurisdiction was not available as the relevant law did not receive the assent of the governor-general.
In consequence of the judgment of the Federal Court, 35 constitutional acts and many decisions under writ jurisdiction became invalid for want of assent of the governor-general. There was total confusion and chaos and the governor-general issued an ordinance with retrospective effect to rectify the mistake. The federal court held in Usif Patel’s case (PLD 1955 FC 387) that the governor-general was not empowered to issue an ordinance for constitutional matters in the absence of the constituent assembly.
The governor-general then made special reference to the Federal Court for guidance (PLD 1955 FC 435). The Federal Court allowed retrospective validation of invalid acts to be approved by a new constituent assembly directed to be elected. This judgment gave rise to the doctrine of state necessity, which is also called the law of necessity, later used by the courts to justify martial laws and the dismissal of constitutions.
Coming back to the topic of judicial activism, the next important case in line is that of Asma Jilani (PLD 1972 SC 139). In this case, the second martial law of General Yahya Khan in 1969 was challenged.
On behalf of the military government, the law of necessity was pleaded but the Supreme Court rejected the plea and held that the commander of the armed forces was bound by oath to defend the constitution and had no power to dismiss the same as the constitution was the fundamental law of the country. General Yahya Khan was also declared a usurper.
In this martial law, we lost East Pakistan which became Bangladesh. The judgment in Asma Jilani’s case is very bold with full manifestation of
judicial activism as the doctrine of necessity was rejected
and the door of martial law was shut.
After the separation of the eastern wing, the remaining four provinces adopted the name of Pakistan and prepared the new Constitution of 1973 with Article 6 inserted in it to prevent the army from dismissing the Constitution and imposing martial law. All this was in vain.
The Constitution was suspended on July 5, 1977, and General Ziaul Haq imposed martial law, which was challenged in the Supreme Court by Begum Nusrat Bhutto (PLD 1977 SC 657). The Supreme Court did not follow the rule laid down in the Asma Jilani case and held that the facts in Begum Nusrat Bhutto’s case were distinguishable as the Constitution had not been dismissed but only suspended and the intention was to restore it.
The suspension of the Constitution and the imposition of martial law were justified on grounds of state necessity and treated as a deviation from the Constitution. General Ziaul Haq restored the Constitution in 1985 after eight years with validation of martial law and laws made by the army chief, which were approved by parliament.
Instead of promoting judicial activism, the judgment in Nusrat Bhutto’s case protected the suspension of the Constitution and the martial law of General Ziaul Haq on the basis of the doctrine of necessity. This was followed again by the Supreme Court in the case of Zafar Ali Shah (PLD 2002 SC 869) in which the suspension of the Constitution and the imposition of martial law by General Pervez Musharraf of October 12, 1999, was challenged.
In both cases, the point that the suspension of the Constitution is subversion, as mentioned in Article 6, and is punishable as treason was not taken up for discussion, hence this moot point remains unanswered.
Validation of martial law by the courts and its subsequent approval by parliament, elected under the umbrella of martial law, changed the basic structure of the Constitution and reversed the progress of democracy. Pakistan was achieved after sacrifices of life and property so that Muslims could live in a homeland under the rule of democracy and have a government of the people, by the people and for the people. Unfortunately we have not been able to save the Constitution from onslaughts undermining democracy.
Democracy can flourish only when all the institutions mentioned in the Constitution perform their roles as defined. There should not be overlapping or overstepping. Every institution must function within its own jurisdiction and limits. The judiciary has a very important role to perform in supervising the correct implementation of the Constitution and not allowing other institutions to overstep their authority. Judicial activism is helpful to the courts to assert their powers and jurisdiction and to do justice strictly according to the law.
The basic principle of judicial activism is rooted in Section 9 of the Civil Procedure Code, which was given to us by the British in 1908, and which empowered civil courts to try suits of a civil nature, except those where which their jurisdiction was expressly or impliedly barred. This means that the court has to be satisfied that it has no jurisdiction under the law. This provision of law lets the court be assertive in matters of jurisdiction unless it is barred expressly or impliedly. It is to be read in conjunction with the principles of equity.
Part seven of the Constitution pertains to judicature and courts. It provides for the establishment of a Supreme Court of Pakistan, a high court for each province and such other courts as may be established by law. No court shall have any jurisdiction except that conferred by the Constitution or law. The Supreme Court has original, appellate and advisory jurisdiction, and jurisdiction to transfer any case or appeal from one high court to the other. The high court has a very wide jurisdiction including the power to issue writs against the orders of government or local authority, challenged as being passed without lawful authority or in excess of such authority.
The high court can also be moved for the enforcement of fundamental rights as enshrined in the Constitution. This jurisdiction can be exercised by the Supreme Court concurrently if it involves the question of public interest and no other remedy is available under the law. Public interest litigation is a new branch of law which has given a new dimension to judicial activism. The Supreme Court being the apex court in the country has the power to do complete justice in any matter pending before it, and if any procedural law comes in the way, the same can be waived in favour of doing justice and providing relief to the affected persons.
The Supreme Court can take suo motu notice or can act on a news item in the print or electronic media in matters of public importance, where fundamental rights are infringed collectively. Judicial activism is a very good thing for the poor and oppressed whose grievances cannot be redressed and for whom procedural wrangles and financial burdens come in the way of justice.
The Supreme Court of Pakistan has acted positively and intervened in many cases in order to do complete justice. Recent examples of these are kite-flying, valimas, sale of Pak Steel, and in the past, sectarian and extra-judicial killings. Wherever injustice is done the courts can demonstrate their spirit of judicial activism and step in to do justice and rectify the wrong done to the people advertently or inadvertently.
The writer is a former chief justice of the Supreme Court of Pakistan.