Feb 23, 2009

Should judges become politicians?

IF I were to ask whether we should let a politician become a judge, or the COAS become president, the answer would be an emphatic NO. But when a judge invokes suo moto powers, he is initiating a process of essentially becoming a legislator, for apparent reasons of looking into public welfare. Suo moto litigation is predominant in the subcontinent and has been used in Pakistan and India to summon failing government agencies to rectify a public wrong. A judge is no longer deciding or passing judgment on a matter presented before him; he has decided to play the role of plaintiff, legislator and referee. It is a powerful check granted to the judiciary to protect the public from a negligent and derelict government, the argument being that countries whose citizens receive good, representative governance do not need exceedingly powerful courts, whereas those where citizens suffer from bad governance have a mechanism in place to watch over their interests. Any functioning democracy divides power between the judicial, the legislative and the executive, encouraging each to function within its prescribed areas. Reaching beyond its realm for any one of the branches of government can cause a severe imbalance. The intended corrective measure, thus, becomes akin to the surgery which killed the patient. The recent past has seen the courts initiate high-profile, important litigation. Chief Justice Iftikhar Chaudhry blocked the privatisation of Pakistan Steel and issued notices to high-ups and provincial police officers in Balochistan on the matter of missing persons. When his bold actions attracted the ire of a dictator, the lawyers successfully rallied the nation by convincing it that a voice which spoke on behalf of the public was being muzzled. It struck a chord with the people, and the nation responded with such vigour that all the king’s horses and all the king’s men couldn’t put the general back together again. The powers are not limited to the Supreme Court of Pakistan. The chief justice of the Sindh High Court took suo moto notice of the May 12 mayhem in Karachi, and summoned the Sindh secretary of home affairs and the IG Sindh among others to appear in court and testify. Justice Bhagwandas, infuriated with the Karachi traffic situation, took it upon himself to ease the situation by checking the flow of traffic during rush hour. He issued multiple notices related to traffic problems including disruption caused by flooding during the rains. But when does a judge stop being one, and become a legislator or bureaucrat? Why not let judges be judges, and politicians be politicians? We have an elected body in place, and an army of civil servants supporting them, implementing state policies. A democracy is a self-correcting system over time. The concern for re-election is paramount among all politicians. Last February, a number of ministers were routed in an election which saw the governing party lose a majority of its seats. If the current government does not address the people’s concerns, it too will meet a similar fate. The basic expectation of the judiciary is to carry out impartial hearings, and confer fair verdicts. It is better to let citizens who feel they have been wronged petition the courts for justice. The courts can then play their part in the system, conduct hearings and if necessary order remedial action. With the passage of time, concerned individuals and organisations acting as watchdogs will emerge and a people-based corrective approach will begin to take root. I believe in an independent judiciary and in a sovereign parliament. The judiciary should not be held subservient to the legislature, and by the same token, neither should parliament be held subservient to the judiciary. The existing laws, aimed at providing checks and balances on the government, give supra-legal powers to one branch over the other, and ignore the role of the citizen in the process. We should let people judge their circumstances, and give the responsibility to them. Empowering our citizens by giving them the right to vote and to freely petition courts, we can wrest the authority of one branch of government over the other. It is only when the right rules are in place that proper, enduring procedures follow. It then becomes just a matter of time. Along with repealing Article 58-2(b) of the 1973 Constitution, our legislators should also consider repealing suo moto powers. As a Buddhist proverb goes, “If we are facing in the right direction, then all we have to do is keep walking.

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