Feisal Naqvi

Archive for September, 2009|Monthly archive page

Judicial activism vs military activism

In Uncategorized on September 15, 2009 at 2:12 am

There is nothing wrong with the argument for judicial activism. Except, unfortunately, that it is an equally good argument for military activism.

Consider the facts. The basic argument behind judicial activism, stripped of its self-congratulatory verbiage, is that the legislature has failed and that it is now up to the judiciary to ride in and save the day. Otherwise, lives will be lost, rights will be negated, poverty will increase and the ship of state will sail over the edge of the world into the great void. In short, what one finds lurking behind judicial activism is just another dressed up version of the doctrine of necessity.

Please note — and this is important — that there is a big difference between judicial activism and active judicialism. When the Supreme Court demanded that the previous regime produce the missing persons, that was not judicial activism: that was the judiciary’s finest hour. When the Supreme Court struck down the privatisation of the Pakistan Steel Mills, that was not judicial activism. But when the Lahore High Court felt compelled to set sugar prices…well, we’ll come to that later.

The obvious question in response to my argument, well, what’s the difference? How do you draw the line between that which is permissible for the judiciary and that which is not?

Well, you don’t. Or more accurately, you can’t. One man’s activism is another man’s conservatism so drawing lines is an exercise in futility. On the other hand, you don’t really need to draw lines to deal with hard cases: all you need to know is which side of the line a particular case falls upon.

My aim here is not to justify or defend any particular line between principle and policy. Instead, my point is that there is a line out there and it is about time that the judiciary and its enthusiasts recognised that unfortunate fact.

Yes, a functional and active judiciary is vital for the health of a country. But a judiciary is only one leg of the tripod that makes up the government. There is also a legislature out there just as there is an executive branch. And if the legislature and the executive don’t know how to do their job, they certainly won’t learn with someone else doing it for them.

At this point in a column, the discerning reader may rightly expect the writer to enlighten him with a few, pithy examples of judicial activism gone awry. Unfortunately, I can’t. The reason for this is that most of my examples involve stuff that is still pending. And making negative comments on pending cases is still punishable as contempt of court.

The absence of available examples, however, only reinforces my point. Take, for example, the setting of sugar prices. At least so far as the short order is concerned, the decision seems to have been based on the desire of the judiciary to ensure the availability of sugar to poor people. Is this a noble aim? Indeed. But is ensuring the availability of cheap sugar within the domain of the judiciary? Well, on that point, there is certainly more than one view available. But thanks to the appeal pending against the decision of the Lahore High Court, we may not mention any of those alternate views.

The theory behind our law of contempt is that public comment on pending cases is undesirable because it can prejudice the fair adjudication of a matter. To some extent, this is a perfectly understandable position. The problem arises when the judiciary ventures into the domain of policy, especially economic policy. What one finds increasingly then is a bizarre situation in which the most unhinged form of populism is entirely unafraid to express itself but all reasonable people keep their opinions to themselves out of a fear of being prosecuted.

As Justice Nasim Hassan Shah once noted in a different context, zubardast maray aur ronay bhi na dey!

This problem is then further exacerbated by the witches’ brew of talking heads and malicious ignorance that characterises our media. It is no secret that our newly liberated Fourth Estate, for the most part, is struggling to make ends meet. At the same time, the simplest television programme to produce is a talk show because it only involves one anchor and a few members of the chatterati, all of whom are only too happy to voice their opinions on TV. Not surprisingly then, the market is rife with “current affairs” programmes in which the gossip du jour is recycled as penetrating insight.

This media climate makes bona fide criticism of the judiciary doubly difficult. In the first place, any would-be critic has to worry about the possibility of contempt proceedings. Second, voicing any opinion that deviates from populist orthodoxy is to ask for trouble, especially if that opinion is based upon the heresy that the learned gentlemen of the superior judiciary are less than superheroes.

Since this column is likely to be misinterpreted, let me make my position absolutely clear. I am not in favour of judicial activism. I am very much in favour of an independent and fearless judiciary which has no hesitation in holding the feet of errant bureaucrats (and ministers and generals) to the flames as and when they transgress the boundaries of the law.

At the same time, our judiciary needs to realise that it is today the beneficiary of an incredible sequence of events which has vested it with more power and more legitimacy than ever before. That windfall may seem like an endless resource but it is not. And if our judiciary does not rapidly learn the difference between wisdom and pandering to the masses, there will come a time when, like many a lottery winner, they too will be left wondering where the good times went.

Ejaz Haider is wrong!

In Uncategorized on September 1, 2009 at 2:20 am

Article 193 of the Constitution provides that high court judges shall be appointed by the chief justice in consultation with the chief justice of Pakistan, the chief justice of the relevant high court and the governor of the province concerned. Each one of those “consultations” requires interpretation.

Thanks to the decision of the Supreme Court in Al Jehad Trust v. Federation of Pakistan (Al Jehad 1), we know that “in consultation with the chief justice of Pakistan” actually means “in accordance with whatever the chief justice recommends”. Thanks to another decision of the Supreme Court called Jehad Trust v. Federation of Pakistan (Al Jehad 2), we also know that “the President” actually means “the President acting in accordance with the advice of the Prime Minister”. And thanks to the current spat between the Governor Punjab and the Chief Minister Punjab, we are about to find out whether consultation with “the Governor” means consultation with the Governor alone or instead means consultation with “the Chief Minister”.

The CM’s men make the following very simple argument in support of their position: Article 105 of the Constitution says that the Governor shall “in the performance of his functions” act on the advice of the Chief Minister. The advice given by the Governor to the President regarding the appointment of judges is the performance of a function. And accordingly, the Governor must act on the advice of the Chief Minister when giving his opinion to the President regarding the appointment of High Court judges. In addition, the CM’s men make the argument that if (as per Al Jehad 2) the President acts on the advice of the Prime Minister in relation to the appointment of judges, it follows logically that in relation to the appointment of judges, the Governor acts on the advice of the Chief Minister.

In response to this, my learned friend Ejaz Haider has put forward a number of arguments which can be summarised as follows. The role of the Governor is not in pari materia to the role of the President because both while appointing Supreme Court judges (under Article 177) and while appointing High Court judges (under Article 193), the President is the initiator of action, that is, a consultor. The Governor, on the other hand, is not an initiator but rather a responder, not a consultor but a consultee.

The legal way of responding to such an argument is to note that this is a distinction without a difference. In simpler words, so what? How does the fact that the Governor is merely a giver of advice (as opposed to a seeker of advice) change the extent of his powers?

The essence of the finding in Al Jehad 2 is that unless the Constitution either explicitly or implicitly provides to the contrary, the President acts on the advice of the Prime Minister. Since there is admittedly no express language in the Constitution providing that the President acts “in his discretion” while appointing judges the real question before the court was whether the appointment of judges was a type of function which inherently required the President to act “in his discretion”. The short answer to that question was, “No”. The Supreme Court thus rejected the argument that the President should act in his discretion because the appointment of judges would otherwise become polluted by “political” concerns.

At least in my view, the exact same logic applies to Governors. Since Article 193 does not explicitly provide that the Governor acts in his discretion, the only defence available to his defenders is that the nature of his function (that is, being consulted with respect to judges) is such that he must act in his discretion. However, that argument stands precluded by Al Jehad 2.

I should note further that while Al Jehad 2 does not itself deal with the role of the Governor, it does approvingly cite a slew of Indian judgements, some of which do explicitly state that the Governor acts on the advice of the Chief Minister while being consulted on judicial appointments. See, for example, Shamsher Singh v. State of Punjab, AIR 1974 SC 2192, 2204 (holding that appointment, dismissal or removal of persons belonging to the judicial service of the state was not a personal or discretionary function of the Governor); Subhesh Sharma v. Union of India, AIR 1991 SC 631, 638 (“The existing scheme of appointment involves a process of consultation with the Chief Justice, the Governor of the State, the Chief Justice of India before the President of India makes the appointment. The involvement of the Governor brings in the Chief Minister…”) (emphasis supplied)

In my off-camera arguments with Mr Haider, he has put forward the argument that the Governor is not really ‘performing a function’ when he gives advice and that the Governor is not acting “in his discretion”. While I have great respect for my learned editor, I am not sure what he means.

In logical terms, the Governor can only act in one of two ways in relation to his official functions: he can either act “in his discretion” or he can act “on advice”. There is no third option. Furthermore, to say that the Governor is not “performing a function” when he advises a president on the appointment of judges is to ignore the obvious. There is a plethora of case law, both Indian and Pakistani, about how important “consultation” is in connection with the appointment of judges. Giving advice regarding the appointment of judges is therefore not just a “function” of the Governor, but one of his more important functions. And if it is conceded that yes indeed, the Governor is “performing a function” while providing advice regarding the appointment of judges, it follows ineluctably that the Governor must perform that function on the advice of the Chief Minister.

The flaw in Mr Haider’s position is further revealed by his generous concession that if the Governor was indeed the appointing authority for judges, it would follow that the appointments would have to be made on the advice of the Chief Minister. To the extent I can understand this argument, it rests on the presumption that the giving of advice in relation to the appointment of judges is merely a de minimis function and nothing to get excited about (as opposed to actually appointing judges). Unfortunately, this argument is negated by the current brawl between the Governor and the Chief Minister. Were this “function” indeed minor, it would not have caused such a rumpus.

An additional argument employed by Mr Haider and others is that “special” overrides “general”, or in other words, that the general provisions of Article 105 (Governor to act on advice etc.) are not applicable to Article 193 (President to consult with Governor etc.). I concede that this is a powerful argument and indeed, it was accepted by the Lahore High Court in M.D. Tahir v. Federal Government, 1989 CLC 1369. However, that judgement was overruled by Al Jehad 2 and is no longer good law (see esp. para 71). Indeed, the Al Jehad 2 judgement itself notes that the author of the M.D. Tahir judgment (Mr Justice Afzal Lone) subsequently backed away from his earlier position regarding presidential discretion.

Still, textual exegesis can only take one so far. The more powerful argument available to Mr Haider (and employed by him) is that there is no precedent of a Chief Minister being consulted with regard to High Court arguments.

I simply refuse to believe that assertion. Since neither he nor I have personally gone through all the files of all the high court judges appointed till date, I think the safer course is to leave the factual argument till conclusively verified. In any event, I think the further point to note is that there have been very few instances in our history of a governor and a chief minister at loggerheads over judicial appointments. Precedent (or the lack thereof) would count for more had governor-CM disputes over judicial appointments been a regular feature of our constitutional history.

The final argument in which I would seek refuge is a more nebulous one. Simply stated, the chief minister of a province is an elected official who enjoys the confidence of a majority of the elected representatives of his province. The governor’s sole qualification for appointment is his ability to please the president. For the elected leader of a province to have no say in the appointment of the superior judiciary of that province is simply grotesque. To insist further that only unelected governors of our titular executive head should be heard merely compounds the insult.

A further aspect of the legitimacy argument pertains to the fact that Pakistan is supposed, at least nominally, to be a federation. In a federation, it is the federating units which are the original sovereign entities and the powers of the federal government are accordingly restricted to those which have been either explicitly or implicitly delegated to it. Obviously, Pakistan is a far cry from the classic conception of a federation. Nonetheless, the fact remains that the Constitution of Pakistan envisages a political structure in which the provinces are not merely subordinate lackeys of the federal government, but have independent and important roles to play.

Even otherwise, it cannot be disputed that a harmonious relationship between the political leadership of a province and its judiciary is one that is crucial to good governance. For the elected head of a political province to be left entirely out of the loop in relation to judicial appointments is therefore contrary to basic norms of democratic governance.

I concede that my “gut feeling” argument can be countered through any number of alternative readings of the Constitution. However, in hard cases like this one, the right answer is not just one which best “fits” the available options but the one which best justifies and honours the text. The appointment of judges is now, more than ever, a serious business with serious consequences. Even to the extent alternate readings are plausible, I believe that a reading of the constitution which gives a greater role to elected officials (as opposed to unelected officials) is to be preferred.

Over to you now, Mr Haider.