November Issue 2009
Just three days after he was restored to his position as Chief Justice of the Supreme Court, Iftikhar Chaudhry outlined his judicial philosophy: “The people are distressed and the courts are compelled to do the work of the government organisations.” This remark came while the court was hearing a case challenging the government’s decision to remove subsidies on oil and petroleum products. Matters such as taxes and subsidies have generally been outside the purview of the court but Chaudhry was declaring a change in what he saw as the role of the judiciary. While Chaudhry did remark that it was not normal for the court to “indulge in such activity,” that is exactly what he and the other justices did and ruled against the government.
Since then it has become accepted wisdom that the Justice Chaudhry-headed Supreme Court is an activist court, intent on legislating from the bench. And while that has been largely proved in case after case dealing with economic matters, there is one important exception. In cases involving terrorism, the Supreme Court has not allowed itself any leeway and has been as strict as possible in applying the law, without taking public interest into account, as it has routinely done in other cases. Does that mean that the Supreme Court’s judicial philosophy changes depending on the case it is hearing at the time?
The Supreme Court has been a model of judicial restraint, always scrupulous in sticking to a minimal interpretation of the law when it comes to cases involving suspected terrorists. Its judicial philosophy came to the fore when the court heard an appeal filed by the government against the Lahore High Court’s decision to free Hafiz Saeed, the leader of Jamaat-ud-Dawa. Saeed had been arrested after being accused of masterminding the Mumbai terror attacks. It was also alleged that Jamaat-ud-Dawa was a front organisation for the outlawed Lashkar-e-Tayyaba.
The case was a strange one since it seemed both the prosecution and the Supreme Court were slightly partial to Hafiz Saeed. First, instead of charging Saeed, the government held him in preventive detention and the only justification they gave for that was his alleged involvement with Al-Qaeda. There was no mention of the Mumbai attacks in the charges and thus evidence provided by India, including testimony from Ajmal Kasab, was not applicable in his case. And the Lahore High Court eventually set Saeed free on a technicality: since Al-Qaeda had not officially been outlawed and declared a terrorist organisation by the Pakistan government, both it and the Supreme Court held that it didn’t matter if Saeed was associated with the group or not. On August 5, just a few days after the Lahore High Court verdict setting Saeed free and the Supreme Court’s dismissal of the appeal, the Pakistan government, eight years after beginning a war against Al-Qaeda, finally declared it a terrorist organisation.
When the government did eventually get around to filing charges against Hafiz Saeed, again in the Lahore High Court, his connections to Al-Qaeda were forgotten. This time, he was charged with being the head of Jamaat-ud-Dawa, which had been named a terrorist organisation by the UN. When dismissing the case on October 12, the Lahore High Court said that UN decisions are meaningless in Pakistan and since under Pakistani law, the Jamaat-ud-Dawa has not been outlawed, the charges are without merit. On appeal, the Supreme Court, once again rigidly applying the law, seemed sympathetic to the Lahore High Court’s decision, although the case was adjourned and the state fined Rs 10,000 for not taking the appeal seriously.
There are various theories explaining why the government might not be trying its hardest to secure a conviction against Saeed, one of the most popular being that it either still supports his organisation or hopes to use it against India at some point in the future. What is more interesting is why the Supreme Court has the same lenient attitude. The remarks made by various justices during the proceedings in this and other cases involving militants might shed some light on that.
An interesting and somewhat revealing comment was made by Chief Justice Iftikhar Chaudhry when he took suo motu action against the flogging of a young girl in Swat when a video of her punishment was leaked. During the proceedings, Chaudhry said, “The possibility cannot be ruled out that fake TV material or a video had been prepared with an ulterior motive to malign the people of Swat.” Making such remarks in court might suggest that the sympathies of the chief justice may lie with the accused. Recall also that the Supreme Court had released Lal Masjid head Maulana Abdul Aziz on bail in 2005 despite his numerous, documented anti-state activities and speeches, the presence of arms and ammunition in the Lal Masjid and his history of violence, including the kidnapping of Chinese women.
It might be more plausible, though, to some that the Supreme Court is using a strict interpretation of the law in terrorism cases, in marked contrast to its rather unorthodox approach in cases dealing with other matters, because of opposition to the government for delaying until the last possible moment the restoration of the pre-November 3 judiciary. This can be gauged from remarks made by justices during the flogging hearing. Chaudhry castigated government officials, saying, “We are not satisfied by your job of sitting in offices and making statements.” Another justice, Khalil-ur-Rehman Ramday, told the interior secretary Kamal Shah, “Except arresting judges, do you do any other work.” In the Hafiz Saeed appeal, on many occasions the Supreme Court hinted that the government was acting only at the behest of the Indian government.
At times, the Supreme Court has handed down decisions that are a mix of judicial activism and restraint. The Supreme Court was the epitome of boldness in declaring Musharraf’s November 3, 2007 proclamation of emergency illegal — the first time the judiciary had taken such a decision against a military ruler. The obvious next step for a judiciary as active as this one would have been to put Musharraf on trial for his unconstitutional actions. The court, though, shied away from that and declared that only parliament could make the decision to put Musharraf on trial. There are some observers who believe that the Supreme Court could use its suo motu powers to try Musharraf, although the court itself has said that it cannot do so. The decision led many to speculate that it was based not as much on the law of the land as a political deal hashed out by the country’s various powers-that-be.
Also interesting was the court’s pronouncement on the fate of the controversial National Reconciliation Ordinance (NRO). Since the NRO had been passed on October 5, 2007, nearly a month before Musharraf declared his unconstitutional emergency, it should not have fallen under the gambit of laws that were invalidated. Still, the Supreme Court came up with an unorthodox solution. It declared that the NRO, and other such laws, would remain in effect for another 120 days, during which time parliament would either have to ratify it or it would expire. The decision was so unprecedented that again it led to accusations of political compromise.
Unlike these cases, on economic matters the Supreme Court has been a decidedly populist entity. The first judgment that indicated that the Supreme Court may use its authority to involve itself in affairs that have traditionally been left to parliament came when it rejected the imposition of a carbon tax. The tax, which applied to all petroleum products, had been included in June’s budget and was approved by the National Assembly. In its scope, the carbon tax was not all that different to the petroleum levy which it replaced. The Supreme Court decided that the carbon tax could not be imposed because the government was not sincere when it claimed that the tax was being levied for environmental reasons. A three-member bench of the court believed that the purpouse of the tax was solely to generate more revenue.
There is reason to question the Supreme Court’s ability to divine the intention of legislators and whether doing so is even necessary to pass judgment on the constitutionality of the law. After all, it could be true that parliament only passed the carbon tax because it wanted increased revenue and yet it could be environmentally friendly at the same time. Just by increasing the price of petroleum products, parliament was ensuring that there would be less demand which would, in turn, lead to lower carbon emissions. It is hard, then, to dispute the conclusion that many have reached: the Supreme Court, in its populist fervour, is acting not as a check on the parliament and presidency but is essentially carrying out its functions.
The Supreme Court took a similarly expansive view of its powers when it not only upheld a decision by the Lahore High Court to fix the price of sugar at Rs 40 per kg but also insisted on applying that to the rest of the country. Before coming to that verdict, the Supreme Court appointed a commission with Competition Commission of Pakistan Chairman Khalid Mirza as its only member to ascertain how much it cost to produce one kilogram of sugar. Mirza returned with the figure of Rs 38.60 per kg and recommended the Supreme Court not fix a price and let the free market decide how much sugar was worth. He predicted that setting the price at a figure as low as Rs 40 would encourage hoarding and smuggling. Mirza, it should be noted, has been fiercely independent as chairman of the Competition Commission, levying a record fine against the politically influential cement industry for forming an illegal cartel. He is also currently investigating a possible cartel in the sugar industry.
The Supreme Court, however, decided to disregard Mirza’s findings and recommendations, with Justice Jawwad Khawaja telling him, “We had appointed the commission to determine the cost of production and not to lecture us on economics.” The real-world effects of the judgment proved to be as Mirza predicted, as sugar became even harder to find in the market and reports emerged that it was being smuggled to India.
While both judicial populism and judicial restraint can be defended as legitimate philosophy, it is the Supreme Court’s wanton application of both that has made it so controversial and its decisions so hotly debated.
Nadir Hassan is a Pakistan-based journalist and assistant editor at Newsline.