Judicial freedom | Irfan Hussain

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AS talk of accountability dominates the public discourse, perhaps it is time to discuss the degree to which our highest court is answerable, and to whom.

Certainly not to parliament. There was a time when the executive was dominant over the judiciary, but that period is long gone, no doubt to the regret of elected politicians. Out of the three branches of the state, the legislature is accountable to the people, while the executive answers to parliament.

Only the third branch is answerable to nobody. And in many ways, this is as it should be for, as we have seen over the years, a judiciary subservient to the executive can be disastrous. Time after time, spineless judges have legitimised military rule, thereby stunting and warping the growth of democracy and the political institutions it needs to thrive.

The judiciary often interferes in cases where it lacks expertise.
However, now the balance has swung the other way, with a judiciary free of any institutional constraints. Thus it enters areas that are the normal preserve of the executive and takes on cases where it has no expertise, often causing havoc.

Even though our judges mean to protect the public interest, they should remember the old saw about the path to hell being paved with good intentions. I recall a few years ago, a sugar shortage was caused by the Supreme Court arbitrarily fixing the price of the commodity, thus driving it underground.

On another occasions, ex-chief justice Iftikhar Chaudhry took suo motu notice of the high price of vegetables and demanded to know the output of the so-called farms in Islamabad’s exclusive Chak Shahzad suburb. Of course, the probe went nowhere as the ‘farms’ belong to well-connected people.

I am of the view that suo motu powers should be exercised judiciously and sparingly in human rights cases. One shining example is the crusade undertaken by Iftikhar Chaudhry to force the security services to produce dozens of ‘disappeared’ people before the court.

But all too often, the higher judiciary interferes in cases where it has little or no expertise. The recent international arbitration decision against Pakistan in the Reko Diq case is one embarrassing and expensive example of judicial overreach. Here, a major multinational mining firm took Pakistan to the World Bank tribunal for breach of contract when Balochistan refused to issue a mining license to Tethyan on the grounds that the firm was in breach of Pakistani laws. This decision was upheld by a three-member of the Supreme Court under then chief justice Iftikhar Chaudhry.

Apart from the large financial penalties that will shortly be fixed, few major players in the mining industry are likely to bid to extract Balochistan’s rich mineral reserves. And as we lack the capital and technical knowhow to extract and process the province’s rich ore deposits, this lose-lose decision benefits nobody.

Then, of course, we have the ongoing cash haemorrhage at the Pakistan Steel Mills, whose privatisation was blocked in 2006 by the Supreme Court under Iftikhar Chaudhry. I am told the short order halting privatisation cited ‘undue haste’ in the process as one of the reasons for the decision. The steel mill’s accumulated liabilities in 2008 stood at Rs26 billion; they are now over Rs415bn, with the government having pumped in Rs85bn. So when we talk about accountability, on whom should we fix responsibility for these huge losses?

More recently, the Supreme Court took cognisance of the mess at the Sindh Public Service Commission, noting that the chairman and several members were ineligible to hold their posts. In the detailed and clear judgment I read recently, the bench has diligently worked out the flaws in the last examination conducted by the SPSC, and ruled that given its many discrepancies its results should be cancelled.

I agree entirely with this desire to improve the quality of civil servants by holding fair and transparent exams. However, I can only sympathise with those candidates who were selected on merit, and who resigned their jobs to take up the assignments they had been offered by the Sindh government. After all, they cannot be held responsible for the appointment of an unqualified chairman of the SPSC by a provincial government keen to appoint its own favourites.

In the US, appointments to the Supreme Court are made through a gruelling process. Nominees are subjected to close scrutiny as their past rulings are put under the microscope of partisan examination by both Democrats and Republicans. Recently, Trump’s pick to fill an existing Supreme Court vacancy, Neil Gorsuch, was put through the wringer by opposition senators.

But once a Supreme Court judge is appointed, he or she serves for life. Only in the case of mental or physical disability, or a request for retirement, does a judge leave the bench. Imagine having Iftikhar Chaudhry serving as chief justice for the rest of his life.

irfan.husain@gmail.com

Published in Dawn, May 6th, 2017