Tuesday, November 15, 2011

Judge, Jury, not Executioner

Chief Justice Chaudhry is playing his cards just right.

At the moment, his Supreme Court is busy grilling the various players in the Rental Power Plants case. The case involves the awarding of government contracts to firms that have not been able to meet the country's power generation needs. The case is a suo moto case, which means that the Supreme Court has initiated it on the basis of news reports and/or citizen appeals and despite the absence of technical requirements for a case. Besides this particular case, the Supreme Court has initiated suo moto cases that dealt with issues as diverse as the Karachi security situation, the NICL scam, the Hajj scam, the Sialkot brothers lynching, the Sarfraz Shah shooting, and missing persons in Balouchistan.

At first sight, these cases seem random. In fact, there is a common thread running throughout these suo moto cases: judicial activism.

Judicial activism occurs when a judge inserts their personal considerations into a ruling. By selectively picking which cases are suo moto, the Supreme Court judges are exercising their personal opinion. For a lot of people, such activism conjures up images of Supreme Court politicization, and ideologically motivated interpretation of the law. The correct way forward, such people say, is to exercise judicial restraint and limit judicial power by not initiating cases for which technical requirements haven't been met. These people don't realize - most likely, they choose not to realize - that, if used properly, judicial activism can introduce some much needed government accountability and social reform.

Is there, as some detractors worry, any evidence of Supreme Court politicization? Far from it.

The ruling on the Karachi security situation implicated all major political parties in Karachi. The NICL case was brought forth against a member of the PML-Q. The Hajj Scam implicated several ministers in the ruling government.

Is there, on the contrary, any evidence of the Supreme Court willing to use the hammer of judicial activism to constructively reform society? No doubt.

The Supreme Court has played the part of the Judge well. But it has gone one step further. Much like the Jury that sifts through the evidence and pronounces the defendant innocent or guilty, the Supreme Court has sifted through the evidence and found the presiding government and law enforcement agencies guilty. It has pronounced this guilty verdict by initiating cases that affect the larger society - corruption and security cases - despite the absence of full technical requirements for case initiation.

But the Supreme Court has not overplayed its hand. Remaining true to its judicial identity, it has merely recommended action, and has stopped short of playing the final role of Executioner. In doing so, it has taught a valuable lesson to other government institutions: it is possible to incrementally reform society without overstepping your limits.

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