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Judiciary
in Pakistan
(News flash) So accustomed had people
become to a compliant judiciary that the Supreme Court Judgment on Pakistan
Steel came as a surprise even to the more charitable observers of the judicial scene.
The court not only scrapped what it regarded as a 'vitiated' deal for
privatization of a prime national asset but also revived a key constitutional
panel envisaged by the constitution makers to be the fulcrum of federal
structure. The federal legislative list was divided into two parts and the
Council of Common Interests consisting of the four chief ministers and an equal
number of federal representatives was mandated to formulate and regulate
policies with regard to the all-important subjects relating to railways,
mineral oil and natural gas, electricity, Water and Power Development Authority
and other federally controlled industrial or commercial corporations and
undertakings. The institution remained dormant and successive governments found
it convenient to work through extralegal inter provincial co-ordination
committees. How far the decision is implemented in letter and in spirit is yet
to be seen. The review petitions moved by the federal government and other
respondents, however, do not question this part of the judgment.
Other important decisions
and orders in the calendar 2006 coinciding with the 50th anniversary of the Supreme Court, which
succeeded the Federal Court under the 1956 constitution, related to such
vitally important matters as destruction of expired medicines, petrol prices,
environment, private practice by government-employed doctors, unregistered
medical colleges, kite flying casualties, wedding meals, commercialization of
parks and college grounds, finalization of pension cases before retirement,
payment of compensation to electrocution victims, school fees, police excesses
and extrajudicial killings, monitoring of lower courts, clean drinking water,
enforcement of the anti-smoking law and, above all, women's rights, including
rape and karo kari cases.
May of the orders was passed in exercise of
the apex court’s human rights jurisdiction. In fact, never before this
jurisdiction was as liberally exercised as after the assumption of the top
judicial office Justice Mohamed Iftikhar Chaudhry in 2005. There was hard any
aspect or national life left untouched by the Unprecedented wave of judicial
activism. Newspaper reports, columns and even letters by private individuals
were sufficient to set the court's suo motu jurisdiction in motion. The late
Prof Jakhrani's death in tragic circumstances as reported by the media prompted
the court to issue detailed guidelines for preparation of pension documents
prior to retirement.
While the Jakhirani case
order extended relief to government employees, a nine-member SC bench verdict
in appeals against Federal Service Tribunal decisions deprived the employees of
I autonomous corporations and other government controlled or managed concerns
of an efficacious forum that had been adjudicating their grievances for years.
The Service Tribunal Act, 1973, was amended in 1997 to exclude the victims of
mass retrenchments in nationalized banks and other government run corporations
from the purview of the writ jurisdiction of high courts, which readily
accepted the ouster and rejected the petitioner employees' plea that the
insertion of Section 2-A of the STA 'deeming' them 'civil servants without
amending the Civil Servants Mt, 1973, was intended only to denude them of the
protection afforded by Article 199 of the Constitution.
Despite being an administrative tribunal, the
FST provided whatever relief corporation employees were entitled to under the
law, including reinstatement with retrospective effect in cases of arbitrary
dismissals. The tribunal being devoid of any power to enforce its judgments by
committing violators to contempt, its orders was enforceable by superior courts,
though the appellate authority lay with the Supreme Court only. The SC judgment
of June 2006 held Section 2-A of the STA partially ultra vires of Articles 240
and 260 of the Constitution inasmuch as the terms and condition of service were
not determined by the federal legislature. While the cases finally decided by
FST were duly saved, the employees were asked to institute ‘approperiate proceedings'
before competent forums’ in respect of petitioners in the Sindh High Court, which
constituted a full bench to determine the preliminary question of jurisdiction.
The views canvassed before the bench ranged from the proposition that the
employees were governed by master- relationship to ‘the restoration of the
pre-1997 remedy’ as observed by the Supreme Court in respect of abated cases.
The SHC bench has reserved its order and the employees remain apprehensive
whether the new appropriate remedy would be as efficacious as the old one and
whether they would ever be able to seek reinstatement.
A remarkable decision
emphasizing adherence to the Constitution was rendered by the Lahore High Court
in the advisers' case. Justice Hamid Farooq ruled that there was no provision
for more than five advisers and special assistants to the chief minister in the
Basic Law or the rules of business. After vacillating for some time, the Punjab
government chose to implement the order and relieved all the advisers and
special assistants, though it could have retained five under the judgment.
Advisers were routinely appointed by former chief ministers and the issue was
raised before the high court earlier but it was the first time that a final
order was passed. Two of the advisers convicted of assault on the Supreme
Court, whose appointment was specifically assailed by the petitioner, were
barred from holding any office of profit in the provincial or federal
government.
Constitution and
articles:
The Sindh High Court annulled the ban on
teachers' associations for being violative of the fundamental rights to freedom
of association and expression as guaranteed by Articles 17 and 19 of the
Constitution and quashed all consequential actions taken against a number of
their members for violation of the ban. Though relying on Articles 17 and 19,
the judgment stopped short of adjudicating a `formidable' contention raised by
provincial education department counsel Khalid Anwar that the emergency
proclamation issued on May 28, 1998, when he was federal law minister, was
still in force and would remain so till revoked under Article 236 (1). A
division bench said the court has the jurisdiction to examine the validity of
the continuance of the 1998 proclamation today but the petitions before it
could be decided on narrower grounds.
Converting representations addressed to him by
certain prisoners into petitions, SHC Chief Justice Sabihuddin Ahmed instituted
an inquiry into prison conditions in the province and passed interim orders for
their treatment in accordance with the law and rules. One such; order declared
that with effect from March 31, the detention of an under-trial prisoner would
be treated as unlawful if he is not produced on the date of hearing. The court also
invalidated a provision of the National Accountability Bureau invalidated a
provision of the Ordinance barring remissions to the accountability court
convicts as discriminatory and, therefore, unconstitutional. By a number of
orders, it prevented commercialization of amenity plots and ordered demolition
of unlawful and unauthorized structures. Another raft of injunctions aimed at
curbing pollution and easing traffic congestion in the city.
The judiciary is increasingly asserting its role as the custodian of the citizens' rights but it is for the executive and civil society at large to ensure the enforcement of judicial orders. It can outlaw administration of criminal justice by Jirgas but cannot prevent their holding, especially when government functionaries themselves are involved. Similarly, there is a limit to the exercise of habeas corpus powers by courts. If the officials of the agencies concerned state on oath that they have nothing to do with the arrest or detention of a person allegedly confined by them, there is little the courts can do besides reminding the government of its obligation to protect the life, liberty, and property of citizens and of all individuals for the time being in Pakistan. The very fact that the judiciary is travelling into areas hitherto shunned by it as, for instance, policy making in the economic field, bodes well for the rule of law and welfare of the people.
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