Populist decisions

Published: May 16, 2019

Billions of dollars in potential fines, tens of millions in legal fees and a priceless embarrassment in international courts. This is what judicial activism seems to have gotten us during the past decade.

Populist decisions taken by a handful of now-retired SC judges may have temporarily won them popularity among the masses, but in the long run, they have cost the country dearly.

When asked about some of these decisions, the judges have been unrepentant, claiming that they were acting in the best interests of the country. Justice is meant to be blind. Judges should simply be concerned with what is right and what is wrong. The bench should not be after popularity, lest it cost the country a crippling $11 billion fine, as may be the case in international arbitration over the voiding of the Riko Diq mining contract by the Supreme Court of Pakistan in 2013.

That Pakistan previously tried to separate the government from the courts while pleading that it should not be liable to pay any fines also illustrated a worrying lack of understanding of how governments work: the legislature and judiciary, along with the executive, are coequal branches of government, meaning that they all form the government. The failure of one is the failure of all. And if any of them go beyond their legal mandates or jurisdictions, it is again, the failure of all.

The problem is that, riding on the back of the lawyers’ movement, judges — once mere mortals like the rest of us — became holy cows. At least one was able to get away with statements claiming that their opinions outweigh the facts. One claimed, post-retirement, that explaining his rulings was not part of a judge’s job — an answer that even the interviewer could not recover from. So it is heartening that the attorney general has advised the federal government to form a commission to fix responsibility for the billions lost in international arbitration. The only problem is: even in retirement, can sacred cows be made to pay?

Published in The Express Tribune, May 16th, 2019.

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