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| June 23, 2008 | Monday | Jamadi-us-Sani 18, 1429 |
Talk of austerity
Islamabad Knowledge City
OTHER VOICES - North American Press
System of judicial appointments: Is the judiciary independent? – 3
The system of effecting judicial appointments by the political executive prevailing in the US is neither consistent with the scheme of our constitution nor the ethos of our society and has also been subjected to scathing criticism in the US itself.
THERE is little satisfaction to be derived from the fact that Mr Zardari and Mr Sharif will keep talking to each other despite their lingering differences on a host of issues. On Friday, however, Mr Zardari was able to get Mr Sharif to back the financial bill for fiscal 2008-09 that includes raising the number of Supreme Court judges to 29. This means that the judges who took oath under the Nov 3 PCO and whom Mr Sharif says he does not recognise as legitimate holders of office will stay after all. The two rounds of talks the leaders held last week failed to reach a common ground on the reinstatement of the ousted judges, impeachment of the president and, now we are told, also on how to govern Punjab where the PML-N heads the coalition government.
While Mr Zardari can be said to have raised the antics of settling any and all matters at the time of his own choosing, Mr Sharif too has been consistent in taking the bait every time it is sent his way. The time has not come for the latter to opt out of the coalition and walk his moral high ground as it were. If there is to be any erosion of the PPP’s popular support because of Mr Zardari’s foot-dragging on the judges issue, Mr Sharif too will not escape the public’s censure when all’s said and done. The game of nerves between the two leaders suggests they have only agreed to disagree thus far. Beyond that lies the slippery ground that neither is willing to tread just yet.
What this time-biding has done for the people who voted for change on Feb 18 is anyone’s guess. Nearly three months in office and the promise of some relief coming to the poor and the middle class in the first 100 days has remained just that. The federal budget under the pressing economic circumstances is no great achievement either, save perhaps the Benazir Card which will subsidise kitchen essentials to the tune of Rs1,000 per month for the poorest of the poor. Those who do not qualify for this state charity will have to fend for themselves. Given the high inflation, the 20 per cent raise in government servants’ basic pay will be of little consolation to employees when they take home their net salary at the end of July. A public fatigue is beginning to set in on various other aspects of effective governance; there has been little seen in action. The energy crisis, issues of provincial autonomy and the fate of the district governments have yet to be addressed. The situation in Fata, the threat posed by extremists and the shifting focus of the global ‘war on terror’ are also calling for attention. The country needs effective governance and it needs it now.
AT a time when the fiscal crisis is approaching catastrophic levels, belt-tightening ought to be a priority at all levels of government. In a concession perhaps to the reality of the day, PM House expenditure has been slashed by as much as 30 per cent in the new federal budget while National Assembly expenses stand frozen. Against this backdrop, increasing the allocation for the President House defies all logic and the country’s parliamentarians are fully justified in opposing the move. It isn’t as if the president — even if he lived in the Aiwan-i-Sadr, which he doesn’t — would be forced to skimp on necessities if the President House budget were to be cut or frozen. He may, however, have to forego a fraction of the pomp and splendour that our officials, elected or otherwise, have come to view as their birthright. After decades of extravagance, an ugly bloat now characterises administration at all levels, be it federal, provincial or local. But credit should be given where it is due and the decisions vis-à-vis PM House and National Assembly expenses are a step in the right direction. The Sindh chief minister is also to be commended for moving around in Karachi with minimum protocol and it is hoped that senior officials across Pakistan will follow suit.
Profligacy is rampant and must be checked forthwith. Taxpayers’ money is squandered on a colossal scale on the frequent foreign trips undertaken by top officials, sometimes (Mr Musharraf’s ‘image-building’ tour comes to mind) for no valid reason. Entourages can be massive, bursting at the seams with assorted ministers, cronies, hangers-on and journalists. Ministerial and parliamentary delegations are also sent on choice junkets, preferably to Europe or North America. In 2004, a succession of prime ministers — Mir Zafarullah Jamali, Chaudhry Shujaat and Shaukat Aziz — together spent Rs43m on Umrah trips paid for by the public. Chaudhry Shujaat’s entourage included no fewer than 134 persons. Mohammedmian Soomro’s brief stint as caretaker prime minister also included a pilgrimage at taxpayers’ expense, and Messrs Zardari and Gilani were accompanied by an unnecessarily large number of people on their recent trip to Saudi Arabia. Meanwhile, federal and provincial cabinets tend to be bloated to the point of obesity. On this count at least, it is clear that the current dispensation is concerned more with placating its numerous allies than trimming the fat from administration. Just talking of austerity is not good enough.
THE development of our country’s intellectual capital is crucial because this is an important source of competitive advantage in the new economy. So is the development of academic-industry linkages. An ambitious knowledge-development project focusing on nurturing local if not regional talent is being planned for the federal capital. Known as Islamabad Knowledge City, an initiative of the federal ministry of education, the project will be executed by a nine-member task force comprising leading officials from relevant ministries and the Islamabad Chamber of Commerce and Industry. The term ‘knowledge city’ refers to an urban centre that places knowledge at the centre of city planning and economic development, enabling knowledge flows, research, technology, brainpower and innovation to provide a sustainable environment for high value-added products and services. In other words, knowledge cities are those in which both the private and public sectors value knowledge, nurture it and spend money on its dissemination and discovery to create products and services that add value and create wealth. Currently there are over
65 urban development programmes worldwide formally designated as knowledge cities. Islamabad Knowledge City could feature on the list if the project is soundly planned and effectively implemented.
What is required is not only political will and commitment to see the project through but effective coordination between relevant government agencies and industrial and commercial sectors, both private and public. Islamabad already possesses the basic educational infrastructure for such a knowledge hub. Building on the special sector which the civic authorities recently designated as an education city, Islamabad Knowledge City can leverage all other knowledge resources in the capital including schools, higher education institutions, technology parks and other public and private academic and training institutes, particularly those in the portion of the city reserved for educational and institutional development. It is also expected to house branch campuses of leading foreign universities. Supported by adequate residential and recreational facilities, Islamabad Knowledge City could help establish the federal capital as a model in innovative education and research in this region, as well as lead the people of Pakistan in meeting the challenges of an ever-changing world.
Assault on Darwin
The New York Times
IT comes as no surprise that the Louisiana State Legislature has overwhelmingly approved a bill that seeks to undercut the teaching of evolution in the public schools. The state, after all, has a sorry history as a hotbed of creationists’ efforts to inject religious views into science courses. All that stands in the way of this retrograde step is Gov Bobby Jindal.
… The new bill doesn’t mention either creationism or its close cousin, intelligent design. It explicitly disavows any intent to promote a religious doctrine. It doesn’t try to ban Darwin from the classroom or order schools to do anything. It simply requires the state board of education, if asked by local school districts, to help create an environment that promotes ‘critical thinking’ and ‘objective discussion’ about not only evolution and the origins of life but also about global warming and human cloning, two other bêtes noires of the right….
That may seem harmless. But it would have the pernicious effect of implying that evolution is only weakly supported and that there are valid competing scientific theories when there are not. In school districts foolish enough to head down this path, the students will likely emerge with a shakier understanding of science.
As a biology major at Brown University, Mr Jindal must know that evolution is the unchallenged central organising principle for modern biology…. If Mr Jindal has the interests of students at heart, the sensible thing is to veto this Trojan horse legislation. — (June 21)
Environment and oil opportunists
Los Angeles Times
PRESIDENT Bush and presumptive Republican presidential nominee John McCain both recently proposed an end to the federal moratorium on offshore oil drilling. What’s really needed, though, is a moratorium on worthless suggestions from politicians for lowering gas prices….
Enter Bush, who on Wednesday said he would end his father’s 1990 presidential moratorium on most coastal drilling if Congress would lift its own, separate ban. His reasoning was so contradictory that it’s a wonder he could finish his news conference without cracking up. While conceding that the long-term solution to high oil prices is to pursue alternative energy sources, he argued that “in the short run, the American economy will continue to rely largely on oil, and that means we need to increase supply.” The US Energy Information Administration says that even if oil companies are allowed to tap the 18 billion barrels under coastal waters that are currently off-limits, oil prices wouldn’t be expected to fall until 2030. How is that a short-term solution?
Coastal drilling isn’t just opposed by a bunch of Prius-driving greenies from Santa Barbara. Existing moratoriums were put in place at the behest of tourism interests, fishermen, small businesses and coastal dwellers. That’s because drilling in these waters benefits oil companies but causes direct economic harm to everyone else by trashing beaches and poisoning marine life….
The destruction of our coasts is too high a price to pay for a negligible decrease in gas prices that’s 20 years down the road. — (June 21)
Louis Fisher in his book Constitutional Dialogue (quoted in Al-Jihad case) writes; “Appointments to the supreme court are highly political appointments by the nation’s highest political figure to a highly political body”. Despite the security of life-tenure in a developed democratic political culture and subject to few tensions, the myth of judicial independence stood exploded in the highly controversial decision of the US Supreme Court in Bush vs Al Gore (503 US 98) where all judges are stated to have voted along partisan lines.
Harvard University law professor, Alan Dushowitz, wrote:
“The decision may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one I know of where the majority justices decided as they did because of the personal identity and political affiliations of the litigants. This was cheating, and a violation of the judicial oath.”
In an article published in 2006, Adam Cohen observed in a crisp comment: “The Supreme Court’s highly partisan resolution of the 2000 election was a severe blow to American democracy and to the court’s own standing.”
Criticising the judgment, which reversed the direction of the Florida Supreme Court for a manual recount, Bill Clinton wrote in his autobiography: “If Gore had been ahead in the count and Bush behind, there is no doubt in my mind that the same judges would have voted 9-0 to count the vote and I would have supported the decision.”
Judges and scholars feel embarrassed in citing the judgment as a precedent and writers enjoy referring to anecdotes from George Orwell’s novel portraying government workers busy in destroying politically inconvenient records in its context.
Instead of being charmed by the system of judicial appointments prevailing in the United States, the PPP team of constitutional experts drafting the constitutional package ought to have realised that the recent example of judicial performance from the highest court of the so-called developed world has not yet gone down memory lane of our people. We would much rather stick to our own constitutional system instead of importing one; the myth of whose efficacy in this day and age stands fully exposed.
It needs to be realised and understood that in any democratic society the judiciary is viewed as the custodian of the rights and liberties of the weak and the oppressed. The mighty and the powerful may never need the assistance of the judiciary. Indeed the majority has a right to rule but those not being in a majority and not even hoping to become part of it have a right to live with dignity and enjoy certain rights and freedom guaranteed to them by the constitution and the law. For the protection of these rights, their only recourse is the judicial system.
This is the essence of the rule of law. In a constitutional system where the judiciary is entrusted with the power to undertake judicial review, strike down legislation repugnant to the constitution and keep a vigilant check on the manner of exercise of executive power, it does not claim to exercise any legislative or executive power.
Nevertheless, it is required to see that the executive not merely acts within limits of the power conferred upon it by the legislature but also uses such powers honestly and fairly as a trustee of the people whose mandate it has received. For the smooth working of any democratic system it is of cardinal importance that the judiciary at all levels must be kept separate from the executive.
Indeed, the only possible objection that could be taken to the present system of appointments could be that in accordance with the strict parameters laid down in the Al-Jihad case, the requirement of objectivity could possibly be overlooked by according primacy with a practically binding effect to the personal opinion of the Chief Justice of Pakistan. After all the chief justice, though expected to be a person possessing a high level of professional competence and integrity, is a fallible human being and in the process of forming personal opinions does not sit judicially.
However this problem could have been addressed by taking it up seriously as was done by the Supreme Court of India, in Special Reference No.1 of 1998 (AIR 1999 SC 1) where the court unanimously held that the opinion of the chief justice is not personal, but institutional and therefore, before communicating his views, a chief justice must also obtain the views of his other senior colleagues and convey them to the executive.
Indeed some, though not decisive, role has been acknowledged for the executive in judicial appointments by the constitution and in the Al-Jihad case. Participation of public representatives from the opposition and the bar in accordance with the Charter of Democracy could also be helpful in assessing the reputation of a candidate. To avoid delay it would be appropriate that all persons involved in the selection process sit together and select the best person after mutual deliberations. This participating process, as detailed below, will be more transparent, objective, and credible and consensus- oriented.
(i) A vacancy in the office of the Chief Justice of Pakistan should be filled by appointment of the senior most judge of the Supreme Court and that of a high court by the senior most judge of that court.
(ii) A judge of a high court should be selected by a committee none of whose member should be eligible for consideration for selection. This committee shall comprise the following:
(a) The Chief Justice of Pakistan and the senior most judge of the supreme court belonging to that province; (b) The chief justice of the high court and two senior most judges of the high court; (c) The federal law minister or any other nominee of the prime minister; (d) The provincial law minister or any other nominee of the chief minister; (e) The leader of the opposition in the provincial assembly or his nominee; (f) A nominee of the provincial bar council chosen through a resolution of the council for a fixed duration
It is proposed that the chief justice of the high court may circulate the names of all persons (preferably two against each vacancy) that he might like to be considered for appointment to all committee members along with their particulars. At least three committee members may also propose any other person for consideration within one week of receipt of such proposals and convey their particulars to remaining committee members. The Chief Justice of Pakistan may then convene a meeting of the committee after two weeks, which may, after due deliberations, select suitable persons. No body should be appointed unless at least two third of the committee members have voted in his favour.
Appointment to the Supreme Court may be made from amongst the serving chief justices and senior judges of the high courts to ensure fair representation of all provinces. A number of seats may be allocated to each province and in respect of others selection may be made on an all Pakistan level on seniority-cum-fitness basis. The three senior-most candidates may be considered against each vacancy. Perhaps the collective decision of the senior judges of the Supreme Court could be most useful in determining the suitability of a person to be elevated. The participation of public and bar representatives could also be considered.
Similarly a six member committee for the selection of Supreme Court judges could be constituted comprising the following:
(i) The Chief Justice of Pakistan and two senior-most judges of the Supreme Court; (ii) The federal law minister or another nominee of the prime minister; (iii) The leader of the opposition in the National Assembly or his nominee; (iv) A nominee of the Pakistan Bar Council.
To ensure representation of all provinces a minimum number of vacancies in the Supreme Court should be allocated to each province. Once they are filled, the remaining appointments should be made on an all Pakistan basis. The senior-most eligible judge of the high court approved by four members should be appointed.
The proposed provisions relating to the appointment of judges in the constitutional package appears to destroy the very concept of the independence of the judiciary which has been recognised as an essential feature of the Constitution of Pakistan for all intent and purposes. The last word in judicial appointment is sought to be given to the executive while the concept of consultation with judicial functionaries has been reduced to a farce.
The concept of meaningful consultation which was even recognised by the council representing the Federal Government in the Al-Jihad case is said to be replaced by some provision which ensures induction of the executive nominees of the executive in the superior courts. The proposed article 193-A stipulates a four member commission comprising two chief justices and two ministers to recommend candidates for appointment as judges of the high court.
To be continued
