Did SC overstep its bounds?

17 03 2011

Moeen H Cheema and Barrister Shahzad Akbar
Tuesday, January 05, 2010

In the aftermath of the Supreme Court’s judgment, which has been delivered via a short order, concerted efforts have been made by the ruling PPP to politicize the Supreme Court and create the impression that the decision was not impartial and that the court has over-stepped its constitutional bounds. What is notable that some liberal rights advocates and former supporters of the court during the lawyers’ movement have joined in the criticism with an array of legal arguments which appear to us to lack any credibility upon closer scrutiny.

Firstly, it has been argued by the court’s critics, expressly as well as through innuendo, that the Supreme Court has focused undue attention upon the corruption cases, particularly the cases against the president. It has been suggested that the court did not pay as much attention to the criminal charges (mostly against MQM members) covered by the NRO as it did to the corruption cases against PPP politicians. Another criticism, which had an active life of a day, was that the court’s selective accountability drive did not cover PML-N and PML-Q politicians who had misused political influence to have their bank loans written off: the Supreme Court’s subsequent order on the recovery of bank loans caused some embarrassment to its critics.

As regards the assertion of an undue focus on the corruption cases as compared to the criminal cases, anyone who followed the court’s proceedings would know that when the court initially asked for information concerning the cases covered by the NRO, the advocate general of Sindh fully co-operated and provided the relevant information forthwith. In contrast, NAB officials dithered, twiddled their thumbs and ultimately committed perjury by trying to withhold or present misleading information. A lot of the court’s time and effort was utilized in getting this information out of the NAB officials. It is partly for this reason that the court made adverse observations regarding the role played by the chairman of NAB and its senior-most prosecutors.

As regards the criticism that the court appeared to go out of its way to nail President Zardari and over-stepped its bounds by directing NAB officials to re-open the cases in Switzerland, the argument is disingenuous. Contrary to Governor Taseer’s unsound sound bite that the court should have confined itself to a two-liner of an order, the court was obligated to spell out the consequences of its judgment that the NRO was void ab initio. As regards the criminal cases in Pakistan, the situation is rather simple as these cases were restored to their pre-NRO situation. However, as regards the Swiss case the benefit had been availed outside the country and unless that undue benefit is reversed the value of the Supreme Court’s pronouncements in the NRO judgment shall be undermined. Another criticism leveled at the Supreme Court is that the court has transgressed upon the domain of the executive by establishing a mechanism to oversee the prosecution of the cases that were covered by the NRO. This contention is particularly disturbing when advanced by some leading lawyers, notably Ms Asma Jehangir. Such critics are presumably well aware that the supervision of the trial and pre-trial processes is a core judicial function. After all, Ms Asma Jehangir, amongst other human rights lawyers, have filed and argued numerous writ petitions seeking quashment or registration of FIRs and the grant of bails.

Furthermore, high courts are routinely asked by lawyers to direct executive officials to perform their legal obligations and to exercise their discretion in an appropriate manner. Critics of the Supreme Court are well aware that established judicial review practice in Pakistan empowers the High Courts and the Supreme Court to scrutinize how public prosecutors in criminal cases and the NAB prosecutors in corruption cases perform their obligations to aggressively seek a conviction and present all available evidence before the trial courts. Therefore, criticism that the Supreme Court has violated the constitutional balance of powers by establishing mechanisms to oversee criminal prosecutions in cases covered by the NRO reeks of efforts to politicize the judiciary and deter future actions that may end up undermining the political credibility of the PPP government.

Lastly, we seek to clear the smoke and dust thrown up by the indiscriminate usage of high-sounding catchphrases such as ‘judicial activism’ or ‘judicial adventurism’. The critics of the Supreme Court have indulged in fear mongering and have sought to create an impression through the use of such jargon that the court is threatening to destabilize the political system. Judicial activism suggests that the court is going beyond established precedents and practices to develop new juristic concepts. Judicial adventurism suggests that the court is simply playing politics and is aggrandizing its own powers in disregard of the adverse political consequences that might entail.

This Supreme Court cannot be accused of either judicial activism or adventurism. In the NRO judgment the Supreme Court merely confined itself to elaborating on the logical consequences of the unconstitutionality of the NRO, a position that was unanimously adopted by all parties appearing before the court. As far as fancy labels go, the court does deserve to be commended for its judicial ‘proactivism’ in that instead of sitting back and waiting for numerous writ petitions to be filed before the High Courts challenging the manner in which cases previously covered by NRO might be compromised by prosecutors seeking to favour powerful politicians and bureaucrats, the Supreme Court developed a novel administrative mechanism to ensure a degree of transparency.

Perhaps it is the transparency that is the cause of such unease!

Moeen H Cheema is an associate lecturer at the Australian National University (ANU). Mirza Shahzad Akbar is an advocate of the Lahore High Court.

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