Judgement that lays down principles of judicial intervention
By Babar Ayaz
“Our country is not the only thing to which we owe our allegiance. It is also owed to justice and to humanity. Patriotism consists not in waving the flag, but in striving that our country shall be righteous as well as strong.” (James Bryce)
This was the parting quote of the Suo Moto Karachi target killings case judgement of The Supreme Court of Pakistan which was announced last week. How I wish that our establishment could follow this quote in the right spirit. The most important words in this quote are: ‘justice’ ‘humanity’ and ‘righteous.’ It is from these attributes that a country becomes ‘strong,’ and not by chest-thumping ultra-nationalism and flag waving.
The judgement has at the very outset established its jurisdiction to take up the case for the protection of the fundamental rights of the people of Pakistan drawing heavily on Quran Surah’s against the killing of a Muslim and any other people. The judgement has equally relied on the Western sources and the constitution of Pakistan to establish the fundamental duties of the State and the government with emphasis on the right to life. In laying down the foundation of their judgement, the honourable court has set broad areas where if a government fails the judiciary can take over the oversight function of the executive. It is the preamble which forms the basis of this judgement which should ring bells for the executive which is surviving fending attacks on its bad governance every day. The window for judicial intervention has been opened.
As it was not the petition by one party against another and the nature of the case was inquisitorial it has made many observations where the government has failed to provide safety of life to the people in Karachi. But the operative part of the judgement has three important instructions which have political implications.
First, let’s take the last instruction of the judgement which says: “Finally, it is directed that a Committee be constituted by the Provincial Government/Executive, headed by the Chief Justice of Sindh High Court, who shall be assisted by the Chief Secretary, the heads of the security agencies i.e. Para-military organizations and I.G. Police, to supervise and ensure that law enforcement agencies take action indiscriminately, across the board against the perpetrators involved in causing disturbances in Karachi. The Chief Justice shall convene the meeting at least once in a month to review the implementation of this judgment and copy of the proceedings shall be transmitted to the Registrar of this Court for our perusal and passing appropriate orders at a later stage, if need be.”
In the first place this instruction shows that after hearing all the parties the Supreme Court has come to the conclusion that the provincial government has failed in dispensing its basic duty of maintaining law and order and protecting the lives of the people. The court has observed unambiguously in paragraph 112: “Here the object of instant proceedings is not to make any
declaration against the State of Pakistan, but one of the Governments,
namely, the Government of Sindh Province….”
By implication this lack of trust is not only in the Sindh government, but it is also indictment of the federal government also as the former is ruled by the same coalition. The government should realise that its political opportunism and inefficiency that led to unabated killings in Karachi and the observations of the highest court is the type of charge sheet our praetorians love to read on PTV when they remove an elected government.
However, every negative happening has some positive side also. In this case the Supreme Court has given instructions to these parties to get rid of pressure from their own respective militant wings. Now if an indiscriminate action is taken against the militants the political leaders can say that as the matter is being supervised by the Chief Justice of the high Court and the Supreme Court and thus no pressure on the law enforcing agencies to release the militants can be exerted. At the same time the judgement has also provided an opportunity to the law enforcing agencies to shun away political pressure. The Supreme Court has amply demonstrated this in the NICL case by protecting the inquiry officer. But at the end of the day preparing a strong case against these target killers is the responsibility of the prosecution which is inefficient, afraid of the killers and is not equipped with strong forensic evidence support. Not to talk about the needed in a country, this is at war with itself.
Secondly, though the court has asked all the parties to purge the militants from their parties, it has reminded the government that the responsibility for filing a reference against a party that has militant wings and is involved in target killings rests with it. This sword of Damocles now hangs on all the parties who use strong arm tactics.
The third most important point of the judgement is that the Supreme Court has recognised that the Karachi killings is a turf war between political parties and the underworld gangs. It has observed that “to avoid political polarization and to break the cycle of ethnic strife and turf war, boundaries of administrative units like police stations, revenue estates, etc., ought to be altered so that the members of different communities may live together in peace and harmony, instead of allowing various groups to claim that particular areas belong to them and declaring certain areas as NO GO Areas under their fearful influence. Subsequent thereto, on similar considerations, in view of relevant laws, delimitation of different constituencies has also to be undertaken with the same object and purpose, particularly to make Karachi, which is the hub of economic and commercial activities and also the face of Pakistan, a peaceful city in the near future.”
Now this is easier said than done. The real issue is delimitation of constituencies as I have been highlighting in previous columns on Karachi killings. Those of us who remember 1998 census know that the Urdu and Sindhis speaking politicians were highly critical of its initial findings – both wanted to exaggerate their population numbers. Thirteen years down the situation is not different, this time the Pakhtun migrants to Sindh are also claiming that they have around four million people in Karachi. The census should be held immediately and transparently perhaps under the supervision of some senior judges. It is on the basis of this census that we can move to the next difficult step – delimitation of constituencies. The MQM would continue to resist the present layout as it is favourable to them, while PPP and ANP want the changes. They would be happy to draw strength from the judgement because it calls for breaking the ethnic strife. The ethnic strife cannot be wiped out unless multi-ethnic constituencies elect multi-ethnic representatives that reflect the demographic composition of the megapolis of Karachi. Although representative of the major ethno-linguistic groups are in the coalition, the Karachiites fear that once the delimitation issues will come up perhaps after March 2011 another wave of violence will sweep Karachi.
It is therefore important that the Supreme Court supervises this process so that impartial decisions may reduce the intensity of the forthcoming bloody political turf in 2012. I know that some may argue that it is the domain of the Election Commission to decide the delimitation of constituencies, so why drag the judiciary into this mess. But my submission is isn’t it the responsibility of the government to protect people’s lives? We have witnessed a semblance of peace has only returned to the city after the intervention of judiciary in the name of ‘justice and humanity.’ (email@example.com)