Is the Judiciary the Government?
The enthusiasm and respect for the judiciary in many of its path-breaking, but, one must add, overly delayed, decisions, is certainly justified, for the judiciary has tried to correct many of its own wrongs from the past, as well as those of an institution which it now eclipses in many important ways, that of the military and the ISI. The proactive stance of the judiciary has been celebrated and many who had lost hope in the process of justice in Pakistan, have found a new champion. The judiciary’s interventions in strengthening democracy will also be recognised as an important achievement for years to come. However, the questions which emerge are regarding the judiciary’s mandate, its boundaries, and whether it is interfering in areas where it may not have expertise or any business to interfere in the first place.
The judiciary responds to petitions put up to it, which means that it consider a very diverse set of issues. It also dismiss petitions, and some are delayed by years, or even decades, as we have seen. It is not clear what sort of expertise the judicial establishment has to decide issues of economic and fiscal matters. A cut in the price of CNG is a very popular decision, but it has major ramifications on a host of other factors, all of which are interlinked. For a start, government revenue will fall, and if the government raises the price of petrol or diesel to compensate for the fall in revenue, will the judiciary intervene again? Interventions of such sort have multiple repercussions and need to be thought through.
However, the issue here is not about the price of sugar or CNG, but about who decides, and about who is responsible for public policy. If the judiciary can lower the price of CNG, why should we complain when another unelected institution suggests that it will bring about enlightened moderation? What if the judiciary felt that the public mood was one of ‘liberalism’, or ‘enlightenment’, would it pass a judgment on how an elected government ought to devise its policies to follow the judiciary’s wishes? And what is wrong then, with the military taking over, lowering inflation and the price of CNG, bringing in lifestyle liberalism, and economic growth?
Public policy is the domain of government. Elected governments also know that they seek re-election, and the price of CNG matters to them perhaps even more than it does to the judiciary, as should the fiscal status of the state. If the government has been entrusted to undertake certain policies on behalf of the electorate, they ought to have the expertise and knowledge of what is better public policy. At times they will need to be populist, but at others they will make unpopular decisions. Governments do make wrong decisions and are often responsible for making a mess of their mandate, as the incumbent government has accomplished. In a few months one will have the opportunity to pass judgment on its performance. Of course the judiciary and media have a role to play in overseeing government activity, but the extent of vigilantism and intervention is what is in question here.
The same logic and enthusiasm which supports an activist judiciary makes the case for an activist military. Unelected civilians and unelected military personnel do, of course, differ in their demeanour, and at the moment most people prefer the former. But what if the military were to intervene and lower all prices, not just for CNG?
Published in The Express Tribune, October 27th, 2012.
COMMENTS (42)
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@hasan iftikhar:
Excellent reply...
perhaps rather than making a gereral criticism of the actions of the judicary, the author should have done some research on the effect of the last action by the judiciary (CNG) .. you may have been persuasive at some level then. judicary is the only institution which is standing up for the people. the government just doesnt seem to care. there is no complaint box for government leaders in their policy making. the courts allow the general population to voice and demand for their rights. perhaps you should take into account that even if the governemnt was using CNG to generate revenue, CNG is used mostly by lower and middle-lower income populace and hence this form of regressive. this kind of thing is important in judging the "goodness" of a tax. i think basically political parties can learn a thing or two from the jury on how to please the pakistani population
I noticed one of the comments in another news article reproduced here as under.
In addition to earlier comments, I place on record the copy of the SC judgement with a simple question; where has the SC in its judgement fixed the price of CNG?. http://www.supremecourt.gov.pk/web/user_files/File/Const.P.33and34of2005.pdf
@asim: It is not just that as India and Pakistan both sail on a similar boat. Indeed this goes without saying that unlike Pakistan, India has always been ruled by an elected government while Pakistan has had long spells of marshal law in the past. So let us not point fingers but try setting our homes right.
@yousaf: Where will your generous supply of extra gas & electricity come from? Ever heard of limited supply of natural resources? It is people like you that the current judiciary is making a fool of and you seem happy to go along!!!! It is only a matter of time before this whole phony drama is revealed. Such diversions are keeping Arsalan out of the news; ever thought this may be the strategy?
Couldn't agree with you more Sir! Great Article... Pakistan needs no government but only judiciary to run the state affairs.
@gp65: Apprectated.
First ask the question . . . "Is the government the Government?"
@Salman:
You sir have missed the whole point of this article.
It is simply profane to rob people of their choice of govt and votes. Whether these anti democracy forces are wearing robes or khakis does not make it right. No paid govt servant is allowed to indulge in politics per 1973 constitution. Yet the acts of high treason are taken as no crime at all. High treason is a smaller crime than contempt of a single man! The army has taken all the flak for overthrowing the elected govts multiple times and even hanging the elected PM. However, each of their action was fully endorsed by the SC without fail, including the hanging of ZAB.
@Parvez: Your concerns about absence of governance are certainly legitimate. The filtration process WILL work once - politicians experience at least once that a transfer of power happens through ballit boxes after completion of full term and they see the relatively poor performers being thrown out. - there is local government also which is what should be truly held accountable for the basic governance problems of safety and security that are absent at this time - terms as small as 3 years will make sure that governments are peretuallly in election mode and never willing to take the hard decisions. To an extent the constant sword hanging over the government's head througout the 5 years in terms of mid term elections has hurt not helped accountabiity - Even with all these (which India has) our democracy is not perfect but is getting better.
Keep the faith and don't lose hope. This too shall pass.
.
Judocracy is getting closer to dictatorship by leaps and bounds. If Judiciary starts governing, where will people to go for relief.
A very dim-witted article. The Author is oblivious of the dynamics here. The Supreme Court has judged on the basis of cases and petitions filed by the Citizens of Pakistan against the corrupt, incompetent, and confirmed failed government...which they couldn't defend...
A major judicial intervention has been ignored by the author, which in my opinion is much bigger than both the CNG as well as the mobile phone closure on Eid. The Lahore High Court gave a stay order on the International Clearing House established by the Long Distance International licensed operators in the telecom sector. The establishment of the gateway was meant to increase revenues for the LDI operators who for their pricing wars had been giving way to grey traffic coming in. If revenues of LDI operators rise, the state revenue rises and most importantly it was the foreign exchange revenue.
By giving a stay order, the court has shown utter disrespect to public policy and business environment. On what basis? Overseas Pakistanis are being effected? That's the worst possible excuse.
The vigilante judiciary is clamping down on anything that allows the state to generate revenues. Please note I have used the word "State" and not the government. How different is the judiciary from mindless opposition politicians?
This pick and choose policy of the judiciary must end and they must remain within their limits.
When the government fails to deliver other forces automatically rush in to fill the void. Today its the judiciary, yesterday it was the army, tomorrow it may be the religious extremists. Thinkers claim that the best answer is to let a democratic dispensation, no matter how bad, prevail. What is problemitic in this thinking is ' do we have the time for experimentation ? May be the answer is to hold elections every 3 years to that the filitration process works faster.
@asim:
how do you think judiciary can ensure clean parliament :
1) the MPs are elected & not selected,53% votes are from rural areas where landlords, tribal leaders, Sardars & then beradari system which is the game-changer....so, as long as these uneducated 53% remain hostage to mentioned elements of our society, whatever we claim to do, same faces will take turn to rule...if we sincerely want to bring change...educate them....
2) when SC is criticised when disqualifying these MPS on different issues like fake degree & dual nationality.Then these criminals are re-instated back through Presidential pardon....
3) it is only us who can bring in change by ensuring that govt imparts education as enshrined in our constitution....
The article may satisfy all the pre-requisites of a so called good article. However, I would appreciate if the writer could try to understand that what he is trying to prove may have a significance when people living in this country are enjoying other benefits. Just a layman example: In Islamabad, CNG is not available for three days and yet all the taxi drivers, commuters, workers have to suffer because of roadbloacks and routes for the official. Now when the price of the fuel is skyrocketing, fuel is unavailable (CNG) and you are stopped for good half an hour to give an exit to an official and most of the people like me will keep their engines idling, what would be the ultimate choice. Same one road block leads to another and your plan to use CNG for three days of strike go into drain when you keep driving on new routes to get to your home. Economy, Political Economy are right for those nations where everything is being addressed properly by the government. Here, the whole focus of the government is to collect revenue from the pockets of salaried people in the form of income tax and then taxes on fuel. If the oridnary man is getting some relieg, people like our writer is showing his sophistication and grasp on the subject. Keep it simple Chacha G.
Mr. Zaidi and all his supporters.
My only question is that whether this judgement is based on law of the land or not. If the government or any body is doing illegal acts, who is reposible to rectify the position. The judgement is based on the law of the land and the making of law is the duty of executive through parliament. But in the instant case, the price is not being fixed interms of law. Am I wrong, please correct me as I have a great respect for the writer as I learnt a much from his book on economics, but this article has shaken the image of writer at least to me.
@Manoj Joshi India: India's democracy is not mature compared with western countries along with the Judicial system.This is evident from the fact that around 40MPs have criminal records.
http://articles.timesofindia.indiatimes.com/2012-07-12/india/326482221criminal-cases-vote-in-presidential-election-national-election-watch
There is no doubt that the judiciary is running a parallel government.Issues and problems created by a corrupt, inefficient or illegal government can be corrected and dealt with by a change of government over a period of time. But judiciary running parallel government can only destroy organised structure of a state, politics, judicial system and ultimately country.
The democratic conceptual framework employed by Mr Zaidi fails to reflect or capture the
socio-political realities of Pakistan . As a result , his carefully built critique of the recent
role of judiciary , though very plausible theoretically , does not match the ground
realities . There is a need to get rid of the conceptual framework which blocks our access
to these realities . Some of the fictions which uderlie this reality-distorting framewok are as
under :
First , the fiction of separation of powers . When did we have it in pakistan ? Does it exist today ? Is there any indication that we are moving in the direction of separation of powers ? Second, the members of the elected assemblies represent the people ? What is the substance in this cruel joke ? Third fiction is that elctions empower people ? Evidence over the last 65 years ?One can continue the expose of such fictions . But I would like to end with the stark
reality of our country which does not find due place in Mr Zaidi's analysis . The stark
reality is that hapless pakistanis , tens of millions of hungry starved people , trampled over
generation after generation , by a small exploiting elite are ever praying for some messiah
who would restraint the the hand of this scourage . Finally we see that people and the
judiciary have joined to exercise some curb on the plunderers of national exchequer ,
oppressors of people .Let us not impede this people-judiciary alliance with concepts of
separation of powers etc which fail to do justice to our realities .
We have to get rid of political pricinples which falsify our realitiese ; we have to develop
our own conceptual tools which capture our realities . That is the task which should be
addressed by outstanding scholars like Mr Zaidi .
Hope the aggressive activism by the judiciary due to the indifferent governance of the present govt may act as an anecdotal for the next govt....agree, that the present judiciary may have overstepped its mandate in some area but was forced to do so due the present attitude of the govt and most of the orders were passed on petitions by the citizens of the country.....the orders were passed on evidence and gov could not prove a thing in its defense.....
What a stupid article and some people without brains saying kudos.
The revenue of the govt will fall ... yes, but they can compensate by reducing non-essential expenditure. Does anyone know this government has the LARGEST cabinet in the WORLD?
Why do they need such a large cabinet? Easy, to mint money from the people’s pockets.
Anyone who has lived abroad will know how those governments function and how they protect their people.
When the judiciary starts to bring things under control, we have authors such as this one bashing them.
Mr Author why dont you bash the government for its extreme corruption, inefficiency and complete lack of disregard for the people's welfare.
Excellent points, Akbar.
I agree on one point. There is no need for a political government in Pakistan if it is this corrupt and inefficient. People try to implement laws of developed nations in Pakistan without thinking that there is no such thing as governance in Pakistan. Also they keep forgetting that these institutions have been divided in order to act as check and balance for each other. It is the political institutions inefficiencies due to which the judiciary has to come in. Two thumbs up to them!
The government must only employ fair and just ways of raising revenues. If the government is not made to do so by compulsion, then the larger public with no say would continue to pay unjustly for the lavishes of the government.
The government finds it convenient to raise revenues from the people least able to protest, and incidentally most likely to be affected by these unfair practices.
Legislature has the mandate to prevent the state from employing unfair means of running the affairs of the state.
Is the Government working?
Why would people go to the courts if they are being provided the services guaranteed by the constitution?
Are the Government servant or master of the public?
The judiciary in any democracy has the role of a custodian of the law or one can say being the Interpreter of the Constitution of that particular nation. Now that democracy is taking roots in Pakistan the role of the judiciary becomes important. Constitutionally there is a defined role for the judiciary and hence as an institution not supposed to run after lowering of prices, ensuring the public distribution system in other words getting into day to day administration nevertheless this institution has a role with regard to guidance that is guiding the executive body of the government. Basically any government is run by three organs in any democracy viz Legislature, Executive and Judiciary wherein the Executive that consists of the bureaucracy as well as elected members led by the Prime Minister or President as the case may be; Parliamentary form of Government or Presidential form of Government; and the cabinet deal with administration and the legislature enacts laws while the judiciary implements the law through certain agencies like the police and along with it the judiciary has the role of Original Jurisdiction wherein this body acts as an advisor to the government. In case of Pakistan the judiciary has in the past worked successfully but the army too has played an influential role that at times has overruled the judiciary thus democracy has suffered. At present the judiciary is trying to control and exert an influence which should not be perceived with pessimism. Democracy needs time and will have its own pangs to finally mature in the Islamic Republic. Marshal law has been a part of Pakistan's political and constitutional history which now needs to be changed. Democracy needs a strong and independent judiciary to function successfully. Perhaps what is being seen as the judiciary having extended their working or trying to do what they are not supposed to do is being a bit too judgmental and trying to compare the military rule with this may not be the appropriate thing to do. After all the judiciary is not and will not infringe the fundamental rights of the citizens of Pakistan that the military regimes have. Hence let the nation decide and let things move the way they are and democracy take a concrete shape in The Islamic Republic of Pakistan.
Basically Judiciary is trying to improve its image. There are 30,000 cases pending.The function of the judicary is to interpret and apply law in the name of state.Under the doctrine of the separation of powers, the judiciary generally does not make law or enforce law but rather interprets law and applies it to the facts of each case.
Unfortunately 2008 elections were massively rigged and 37million out of 82m were fake votes. The current law makers in the parliament are convicted in various cases. Public positions are held by such persons which is against the constitutional clauses. But unfortunately judiciary has failed to check this version of democracy where convicted and criminals are holding key positions and making laws for the country.
If executive/legislators are properly made accountable no need to pursue cases which falls under their jurisdiction.If SC ensures a clean parliament 99% problems will be resolved.
Excellant!!!!!Government is accountable to people but judiciary is not accountable.......Will judiciary prepare a balanced budget.......????
A logical step for government would be to file a petition detailing the amount of budget deficit and seek judiciary's recommendation regarding items where price or taxes can be raised to cover this deficit.
The author is spot on. There is a space that is available for judicial activism and it should be exercised in temporary manner and rarely so. The judiciary can admonish the government and can demand explanation for their actions. But to change government agenda is certainly outrageous. It is a pointer to the inherent weakness of the government as well as overly aggressive judiciary. Also when judiciary is as active in the matters of the government and the military it may end up losing focus over its core area. It opens the judiciary to undue criticism from the other organs of the state. Ultimately it disturbs the delicate balance and rather than working together these organs start redefining their boundaries. Such volatility is also due to proliferation of suo-moto actions as opposed to waiting for concerned citizens/organisations to file SAL's / PIL's.
Excellent analysis..Why not military courts..delayed justice is bigger problem than CNG and sugar prices..
I agree. Intervening in CNG issues and other governance issues is outside the scope of judiciary's work. It is setting a wrong precedent by entangling itself in these governance issues.
@author::I agree with you that government has to generate revenue to run the affairs.Will you like to determine the comparative revenue generation if,One:-from the sale of CNG alone employing a few people,and.2nd:-In case the industry gets cheap power and the wheel of economy,in all fields, starts running full-swing and the volume of production increases to its full along with the number of people who will get employed.What will be the total revenue difference in each case separately.Same will apply in other cases where SC had to take action due to indifference shown by the authorities concerned
"The main concern here is whether the judiciary is trying to run the government, and if that is the case, what need of government?"
I have been a staunch supporter of the current judiciary and admired most of their decisions on various issues. However, I have recently started feeling that the judiciary has started crossing their limits. There are certain economic and political policy matters which are purely prerogative of the executive and judiciary should not interfere in these matters. Government business is tricky, and many decisions are made purely on political basis rather than following some static rules laid down by the others. I totally agree with the author that it is not court's business to set the price of CNG, or overrule the government’s decisions about mobile phone closures during the Eid holidays. Having said that, I also believe that the present government is mainly responsible for these court interventions due to her phenomenal poor performance and disgusting governance.