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| January 28, 2008 | Monday | Muharram 18, 1429 |
Enhancing police efficiency
Road to pluralism
Evolution of judicial activism
OTHER VOICES - US Press
“IT is emphatically the province and duty of the judiciary to say what the law is,” says Chief Justice John Marshall of the US. Consequently, the judges necessarily have to exercise their power, irrespective of the posture of the power-hungry executive or the touch-me-not attitude of the legislature.
PRESIDENT Pervez Musharraf spent a better part of his time at the World Economic Forum (WEF) at Davos in allaying the West’s concerns over Pakistan’s role in the war on terror and political turmoil at home ahead of next month’s elections, and satisfying the West’s fears about the safety of nuclear assets. But he stole a few moments to renew Islamabad’s call for greater market access for its exports to Europe. In a meeting with the West’s corporate leaders, he urged European nations to improve Pakistan’s access to their markets in order to “make it economically stronger to fight poverty and illiteracy, which were root causes of terrorism and extremism.”
Pakistan has been pushing for improved market access for its goods, particularly its textiles and clothing exports, to its two biggest trade partners — the European Union and the United States — when its exports took a blow because of the international war on terrorism. True, 9/11 did contribute to a large extent in helping Pakistan improve its balance of payments constraints and uplift its sagging economy, the ensuing war on terror frightened foreign buyers. The textile industry — which contributes above 60 per cent of the nation’s export revenue — is still reeling under the impact of these developments and failed to take full advantage of the abolition of the textile quota regime in 2005. International buyers are reluctant to visit Pakistan and place orders for fear of disruptions in timely delivery of the goods.
Initially, the EU allowed duty free import of Pakistani textiles and clothing from 2003 to 205 in view of Pakistan’s ‘frontline status in the war on terror’. But the arrangement was called off in spite of Islamabad’s calls for an extension. Interestingly, the EU continues to extend the same facility to Bangladesh and Sri Lanka, albeit for different reasons, affecting Pakistani textiles competitiveness in its market. Washington, on the other hand, continues to drag its feet on the issue.
If the past is anything to go by, there is little chance of the EU considering the president’s demand seriously for various reasons — such an arrangement can be challenged under the WTO rules and the curbs on civil and political liberties and democracy in Pakistan remain major issues with Europe. But the big question is: can we take advantage of the facility even if Europe and the US agree to allow preferential treatment to Pakistani exports? We cannot — at least, not fully — given the persisting energy crisis and months’ long political uncertainty at home. In the given circumstances, the government would do more good to the industry if it took immediate measures to augment gas and power production/supplies and sat across with businessmen to find ways to reduce their production costs. A clean election on Feb 18 would be an additional boost for the national economy in general and exports in particular.
THE Pakistan automated fingerprint system inaugurated in Islamabad on Friday is a positive step towards more efficient law enforcement. A joint Pak-US initiative funded by the American government to the tune of $13m, the PAFIS software allows for identifying fingerprints at the touch of a button whereas previously the police were dependent wholly on time-consuming manual comparisons. Needless to say, the old process was anything but reliable and possibly allowed many a criminal to slip through the cracks. Conclusive fingerprint matches should, at least in theory, also aid the prosecution in securing more convictions in court where many cases are presently thrown out for want of evidence, slipshod investigation procedures and state witnesses of dubious credibility. Police officers across the country will now be able to access a centralised database containing the fingerprints of every single person who has ever been arrested in connection with a crime. On the face of it the new system ought to significantly enhance the investigative capacity of a police department whose performance to date has been habitually abysmal.
But state-of-the-art software cannot on its own tackle the rising crime wave in the country. If crime scenes involving assassination attempts on major political figures can be hosed down within hours, inadvertently or otherwise destroying the evidence on the ground, it is easy to imagine how routine crimes are approached by the police. Fingerprinting suspects is only one aspect of crime scene investigation. What about the fingerprints that may have been left behind by culprits who made good their escape before the police arrived on the scene? Does the police have the training and resources — or the inclination, for that matter — to go over a crime scene with a fine-tooth comb, taking care at the same time to avoid contaminating any evidence that could possibly be retrieved? The answer to both questions is no. Besides the lack of training and resources, motivation is also a huge factor. The salaries of policemen are such that most just want to get through the day as quickly as possible, as opposed to meticulously poring over crime scenes and getting to the truth of the matter. It also needs to be asked why the much-touted police reforms have failed to deliver. Last year the National Reconstruction Bureau found that out of the 110 Criminal Justice Coordination Committees established at the district level under the Police Order 2002, as many as 74 were either inactive or not following due process. As we said then in these pages, “The situation has worsened steadily over the years. In 2004, the number of districts complying with official procedure stood at 63.4 per cent — by 2006 it had dropped to an abysmal 32.7 per cent.” PAFIS is more than welcome but a systematic overhaul of the police department is also in order.
TOLERANCE has sadly become the forgotten language of modern society. Its absence has become the enemy within that spawns countless external demons such as radicalism, racism and class struggles. But the damage reaches beyond global issues and has trickled into our home, leading to fractured interpersonal relationships. The real battle lies in confronting and reining in our collective intolerance towards each other to allow a pluralistic social order to take root. As prominent bureaucrats maintained in a recent seminar at Karachi University, a nation’s security is entirely dependent on its ‘internal dynamics of power’ and that ‘it’s the people and not weapons that ensure its security’. Pakistan’s present challenges —from the security of its nuclear programme to a turbulent transition to democracy — also stem from a lack of societal integration that in turn, paves the way for external and internal destabilising forces to wipe out any attempts at nation-building. The most fearful aftermath of an intolerant culture is the rise of alternative realities that propel radicalised youth towards destruction; a parallel belief that remains largely unchallenged in a Muslim society such as ours, giving rise to mass misinterpretation of a religion that advocates tolerance and moderation.
Peace can hardly be the order of the day in a country where educational institutions are prime breeding grounds of violence, fear and bigotry. The inculcation of a civic sense, temperance and basic human values has to begin in the family and in school and the focus must not digress from introducing children to the ‘real’ wisdom of Islam that rests on unity. The idea is certainly not to promote a specific cultural supremacy but to allow reasoned, liberal communication and lifestyle. Our moderate traditions must be protected to ring in an era of a balanced pluralistic existence.
Judicial activism is a time-honoured trait of judicial function, and to give up that trait is to capitulate before these two mightier organs of the state. History abounds in scintillating examples of judicial activism, when the judiciary came face-to-face with legislative arbitrariness, or executive abuses or interference in the due course of legal proceedings.
In the Dr Bonham case, decided in 1610, the issue was the validity of the charter of the Royal College of Physicians, confirmed by an Act of Parliament, which gave the incorporated society of physicians power to impose fine upon physicians going against its rules. The fines so imposed were payable half to the crown and half to the society. Dr Bonham, who was alleged to have violated the society’s rules by practising medicine in London without obtaining a proper certificate was summoned before the Royal College of Physicians and fined.
When he refused to pay the fine, he was imprisoned. He brought action for false imprisonment. Lord Coke, chief justice of the Court of Common Appeals before whom the case was listed, held the imprisonment wrongful on the ground that the statute which made the college the judge of its own cause, complainant and prosecutor, was against ‘common right and reason’, and was void. He declared: “When an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.”
The judicial activism of Lord Coke shocked many people who strongly believed in the supremacy of parliament. Nevertheless, Lord Coke laid the foundation of judicial review, and history has justifiably conferred on him the title of ‘the legal father of judicial review’.
Five years later, another great judge, Hobart, was called upon to decide the Day vs Savadge case. Chief Justice Hobart ruled: “It is against right and justice and natural equity as to make a man judge in his own case.” He emphatically declared: “Even an Act of Parliament, made against natural equity, as to make a man judge of his own case, is void in itself, for the laws of nature are immutable, and they are leges begum (the law of laws).” Chief Justice Hobart’s famous phrase, leges begum, has become the foundation of the modern concept that the constitution, being the basic law, is the law of all laws.
Two hundred years later, John Marshall, chief justice of the US Supreme court, expounded the theory of judicial review in Marbury vs Madison (1803). He had to face a conflict between an act of Congress and the constitution. He said: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule.”
He ruled that it is a proposition too plain to be contested that the constitution controls any legislative act repugnant to it, and any legislative act contrary to the constitution is not law. He propounded the theory of judicial review in relation to the written constitution, what his predecessors, Lord Coke and Justice Hobart, did with respect to the higher norms of the common law and natural equity respectively.
Chief Justice John Marshall’s proposition not only infused fundamentality into the constitution but also proclaimed that the court could decide on the constitutionality of the laws. He asserted the power of the courts to curb any illegality, whosoever its author may be.
Tocqueville paid a well-deserved tribute: “The power given to the American courts to pass on the constitutionality of statutes constitutes one of the most powerful barriers which has ever been raised against the tyranny of political assemblies”.
‘Judicial auto-limitation’ is a phrase used by Prof Edward McWhinney to describe the principles enounced by Justice Brandies of the US supreme court in the Ashwander vs Tennessee Valley Authority (1936) case. All the principles indicated by Justice Brandies in this case are rules to be observed in exercising the power of judicial review. The Brandies principles have been further developed by Justice Frankfurter. They make up the doctrine of judicial self-restraint. This doctrine has been accepted as “a judicial policy of non-involvement, as far as possible, in great political and social tension issues”.
It is not their view that in the face of legislative tyranny or executive authoritarianism the judiciary must kneel down and muse over its helplessness. If such a situation of judicial helplessness comes to pass, the unique role etched out for the judiciary by the great visionaries of law — Lord Coke, Hobart and John Marshall — would come to nothing.
A striking example of legislative excesses and judicial assertion of its review power in India was witnessed in the Indira Gandhi vs Raj Narayan case. Soon after the Allahabad high court struck down Indira Gandhi’s election to parliament (and when the appeal was pending before the supreme court) the then parliament inserted Article 329-A(4) through the constitution (39th Amendment Act, 1975) to validate her election with retrospective effect. The majority ruled against the validity of Article 329-A (4). Justice Mathew said: “It is the result of the exercise of an irresponsible despotic discretion governed solely by political necessity or expediency.”
The Stuart king, James I, firmly believed that the judges, being his appointees, must obey his order. He ordered Lord Coke that his court must conform to the king’s prerogative to dispense with laws in certain cases or be dismissed. To this Lord Coke replied; “For my place, I little care. I am old and worn out in the service of the Crown. But I am mortified to find that Your Majesty thinks me capable of giving a judgment which none but an ignorant or a dishonest man can give.”
The king replied: “I am determined to have 12 judges who will be of my mind in this matter.” Lord Coke replied: “Your majesty may find 12 judges of your mind, but hardly 12 lawyers.” Lord Coke lost his position, but some of the other judges of that court recanted and prostrated themselves before the king. While Lord Coke attained immortality, the other judges were thrown into the dustbin of history.
Judicial activism is the role etched out for the judiciary in a democratic society governed by the basic law to keep the horizon of liberty clear and to give substance to the all-pervasive concept of the rule of law. If the judiciary fails in this, nothing can save the democratic policy, as Chief Justice John Marshall concludes: “The constitution itself becomes a solemn mockery.”
Let us remind all doubting Thomases; “Be you ever so high, the law is above you. Only knight-errants of executive excesses can fall in love with the dame of despotism, legislative or executive. If the judiciary gives in here, it gives up the ghost.”
Stabilise Kenya
RIOTING and bloodshed in Kenya have reached levels that can no longer be ignored. A rigged election several weeks ago delivered a narrow victory to President Mwai Kibaki. Since then, nearly 700 people have been killed and 250,000 displaced. Police assaults against rioting opposition-group supporters and pogroms fuelled by tribal resentment contributed to the body count.
… This isn’t Rwanda. Countries from Ukraine to South Korea have struggled to implement democratic elections. But Kenya’s historic role as a beacon of calm and stability in East Africa makes for a special case.
This is a chance to intervene before things turn bad. President Kibaki is a member of Kenya’s powerful and influential Kikuyu tribe. The tribe represents a fifth of Kenya’s population yet it dominates its politics and economics and is sorely resented for it. Kenya isn’t a failed state and it cannot become one.
But election fraud can undo years of hard work. Pressure should be brought to bear on Kibaki to hold clean, transparent elections. Joint rule with the opposition party isn’t out of the question, since the president’s coalition party suffered heavy losses in parliament, emerging with only 37 of 210 seats.
… Kenya’s stability is in our best interest. It is a valued ally in the fight against terrorism and a key player in neighbouring conflicts, most recently in Sudan with the crisis in Darfur.
The last thing anyone needs is an unstable Kenya. — (Jan 25)
A hit on UC’s books
IF the state legislature — and the people of California — hadn’t heard the alarm about the University of California before, it’s ringing again.
On Wednesday the state supreme court confirmed that the University of California must refund at least $40 million in student fees. Students sued after the university raised fees in 2003 — despite making promises, both tacit and written, that it would do no such thing. So far administrators have no idea how they’re going to pay for the settlement.
It’s a mess. The whole reason UC raised student fees was because the cost of higher education has been skyrocketing at rates far higher than inflation, and it hasn’t got enough money from the state of California in the first place.
We hope the state legislature will take heed of how shorting the university forces all Californians to pay more later — whether the example is as obvious as this one, or whether it comes in the form of higher dropout rates or less upward mobility for future generations.
As for UC, it’s time for administrators to regroup and develop a new plan of action. The university has had a rough go in recent years, and it’s time for it to decide how it can best focus its efforts and its resources. It may have to keep hiking student fees and focus more on capital campaigning and pleasing donors than on the expensive businesses of research and educating our state’s future leaders…. — (Jan 25)