The Rul­ing Pil­lar

The Ju­di­ciary in Pak­istan has taken upon it­self to fill the vac­uum left open by the Executive.

Southasia - - CONTENTS - By S.G. Ji­la­nee

”The Ju­di­ciary dis­penses jus­tice ac­cord­ing to the law and pro­tects ba­sic rights. If any au­thor­ity or state in­sti­tu­tion vi­o­lates the Con­sti­tu­tion then the Ju­di­ciary has the power to re­view it. In­jus­tice leads to chaos and an­ar­chy, thus it is essential to en­sure rule of law.” –Supreme Court Chief Jus­tice, Mian Saqib Nisar, at a full-court ref­er­ence to mark the start of the new ju­di­cial year

Pak­istan is a coun­try whose “pil­lars of state,” do not func­tion prop­erly. This is par­tic­u­larly true of the executive branch, which is steeped in per­va­sive cor­rup­tion and in­ef­fi­ciency. Hence, there is a lack of good governance. To cor­rect the sit­u­a­tion, the army has fre­quently as­sumed power. But it has failed to en­sure an ef­fi­cient civil ad­min­is­tra­tion be­cause it is pri­mar­ily equipped to de­fend the coun­try‘s borders and not trained as ad­mini­tra­tors. Es­tab­lish­ing the rule of law by keep­ing the executive on a tight leash is not its cup of tea. That is a func­tion best per­formed by the judges, be­cause they are the cus­to­di­ans of the Con­sti­tu­tion and fun­da­men­tal rights of the cit­i­zens.

The ba­sic duty of en­sur­ing the rule of law in Pak­istan, there­fore, de­volves on the Ju­di­ciary. It has of­ten come to the as­sis­tance of the help­less through its suo motu pro­ceed­ings against er­rant and high-handed of­fi­cials, both civil and mil­i­tary. As the Chief Jus­tice ob­serves, “The court took suo motu no­tices on re­ports of vi­o­la­tion of ba­sic hu­man rights.”

For ex­am­ple, the apex court’s hu­man rights cell de­cided 29,657 com­plaints in the pre­vi­ous ju­di­cial year, pro­vid­ing re­lief to those af­fected. Also, it has been due to the Supreme Court’s in­ter­ven­tion that a num­ber of miss­ing per­sons have been traced and res­cued from the clutches of their cap­tors.

The pres­tige of the Ju­di­ciary suf­fered in the past, due to cer­tain con­tro­ver­sial ver­dicts that en­dorsed high-handed ac­tions of usurpers of power, as in the mat­ter of Prime Min­is­ter Kh­waja Naz­imud­din’s dis­missal by Gov­er­nor Gen­eral, Ghu­lam Mo­ham­mad, or le­git­imized mil­i­tary takeovers. But that is now left be­hind since the Ju­di­ciary has redeemed it­self with its bril­liant record in en­sur­ing the rule of law.

In 2017, for in­stance, the su­pe­rior Ju­di­ciary - the Supreme Court and the high courts – took up cases of pub­lic interest, espe­cially those re­lat­ing to ba­sic ameni­ties. Wor­ried about fail­ure or short­com­ings of governance, the su­pe­rior courts seemed to be con­vey­ing the mes­sage that they would set things right, espe­cially in the ed­u­ca­tion, health, wa­ter and san­i­ta­tion sec­tors.

In Sindh, par­tic­u­larly where the rot was the worst, the Ju­di­ciary played a vi­tal role in re­dress­ing pu­bic griev­ances dur­ing the year. It is­sued di­rec­tives to fed­eral and pro­vin­cial gov­ern­ments to put in place mea­sures for the pro­tec­tion of fun­da­men­tal rights re­gard­ing ‘life and prop­erty’ of the res­i­dents of Sindh.

In one in­stance, the SC grilled Sindh Chief Min­is­ter Mu­rad Ali Shah through a doc­u­men­tary which showed the ‘filth’ of the prov­ince and lack of ba­sic ameni­ties such as avail­abil­ity of potable wa­ter, san­i­ta­tion and a pol­lu­tion-free en­vi­ron­ment.

In yet another move, the apex court con­sti­tuted a ju­di­cial com­mis­sion to carry out prov­ince-wide in­spec­tions to in­ves­ti­gate the au­thor­i­ties’ neg­li­gence in pro­tect­ing fresh wa­ter sources, the en­vi­ron­ment and marine life.

To con­trol marine pol­lu­tion, the apex court di­rected the ad­di­tional at­tor­ney gen­eral to con­vey to the prime min­is­ter to help the pro­vin­cial govern­ment in con­trol­ling grow­ing marine pol­lu­tion caused by dump­ing of 460 mil­lion gal­lons of toxic and un­treated in­dus­trial ef­flu­ent and do­mes­tic waste into the sea every day. The court passed this di­rec­tion with re­gard to the re­cently ap­proved joint plan of the fed­eral and pro­vin­cial gov­ern­ments to in­stall five com­bined ef­flu­ent treat­ment plants across Sindh for the treat­ment of in­dus­trial and do­mes­tic waste.

Tak­ing no­tice of nearly 35,000 amenity plots in Karachi be­ing un­der ad­verse pos­ses­sion and used for com­mer­cial ac­tiv­i­ties, the SC or­dered the Karachi De­vel­op­ment Au­thor­ity and Karachi Metropolitan Cor­po­ra­tion (KMC) to re­claim such spa­ces.

The most im­por­tant in­stance of ju­di­cial in­ter­ven­tion, how­ever, oc­curred when the Sindh govern­ment ar­bi­trar­ily tried to re­move the Sindh Po­lice In­spec­tor Gen­eral (IG). A. D. Khawaja al­legedly for not fol­low­ing its or­ders. The Sindh High Court ruled that Khawaja would com­plete the ten­ure of his ser­vice and ex­er­cise his full of­fi­cial au­thor­ity and pow­ers dur­ing his ten­ure to ef­fec­tively and ef­fi­ciently han­dle his force.

When the pro­vin­cial govern­ment

tried to cir­cum­vent the court’s or­ders by sur­ren­der­ing the IG’s ser­vices to the fed­eral govern­ment vol­un­tar­ily and ap­point­ing Ad­di­tional IG Ab­dul Ma­jeed Dasti in his place, the judges set the move at naught, rul­ing that the pro­vin­cial govern­ment could not in­ter­fere in the ad­min­is­tra­tive af­fairs of the po­lice de­part­ment, in­clud­ing re­mov­ing the IG with­out com­plet­ing his ten­ure.

Mean­while, the com­mis­sion, headed by Jus­tice Muham­mad Iqbal Kal­horo of the Sindh High Court, shot a video dur­ing its vis­its to in­spect the wa­ter re­sources and wa­ter fil­tra­tion and sew­er­age treat­ment plants in Karachi and other dis­tricts of Sindh that showed the sup­ply of filthy drink­ing wa­ter and poor san­i­ta­tion conditions. Later, the Supreme Court in­quired of the Sindh Ad­vo­cate Gen­eral whether the said video had been shown to the mem­bers of the Sindh Assem­bly, be­cause the court wanted to jolt the law­mak­ers from their slum­ber to see the mis­er­able conditions the peo­ple of Sindh had been liv­ing in.

And that is what the su­pe­rior Ju­di­ciary is sin­cerely do­ing, be­cause no other in­sti­tu­tion is de­liv­er­ing, leave the executive alone, due to its prover­bial in­ef­fi­ciency. Even the other so-called “pil­lars of the state” seem to be in a mori­bund state. The par­lia­ment does not en­act laws to im­prove the qual­ity of life of the peo­ple. The fa­mous fourth pil­lar - the me­dia - too lacks the vigour to ex­plore and re­veal star­tling facts.

The Ju­di­ciary is the only in­sti­tu­tion in the coun­try, there­fore, to which peo­ple in dis­tress look for­ward to for re­lief.

The most im­por­tant in­stance of ju­di­cial in­ter­ven­tion oc­curred when the Sindh govern­ment ar­bi­trar­ily tried to re­move the Sindh Po­lice In­spec­tor Gen­eral (IG). A. D. Khawaja al­legedly for not fol­low­ing its or­ders.

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