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A roll-call of losers

Critics say populist litigation often crosses jurisdictional limits, calling upon courts to interfere in matters that are purely the prerogative of the Executive and the Legislature

A roll-call of losers

Over the past decade or so, populist litigation in Pakistan has touched every sphere of individual and collective existence. From cultural events such as Basant to matters that affect the everyday life, such as sugar prices, taxes on mobile phone cards, medical college and private school fees, to those that relate to water security and encroachments and environmental degradation in Bani Gala, to high-profile cases, including Pakistan Steel Mills, Reko Diq, the Memogate scandal, rental power plants and the Dam Fund – all such matters have been addressed through a string of populist litigations.

Through suo motu action taken under Article 184 (3) of the Constitution, the apex court has taken up many cases. Article 184 (3) states that the Supreme Court can take suo motu action if it sees a violation of fundamental rights, listed in Chapter 1 of the Constitution.

Besides, any individual can approach the court and file a petition to draw its attention to a violation of any of the fundamental rights. The court, in these matters, converts the simple application into a petition, procedural requirements.

Since 2005, while this exercise has brought its share of popularity to the petitioners as well as the judiciary, it has caused a fair amount of apprehension.

Critics say populist litigation often crosses jurisdictional limits calling upon courts to interfere in matters purely the prerogative of the Executive and the Legislature.

In December 2017, then chief justice of Pakistan, Justice Mian Saqib Nisar, stated that the judiciary should be seen like a village elder, and that its integrity should never be doubted. Nevertheless, since his retirement, review petitions have been filed against several of his judgments of which some have been revoked.

This year in June, the top court withdrew its order of December 2018 that required private schools to reduce their tuitions fee by 20 percent. The order had been announced by Justice Nisar. The court has now ruled that private schools should also be allowed a 5 percent hike in tuition fee annually.

Naturally, the verdict was seen as a relief by private schools. “Justice Saqib Nisar’s order was against Article 8 of the Constitution,” says All Pakistan Private Schools Federation, Central President Kashif Mirza. “It brought disaster to the business, escalated rifts between parents and school administrations, compelled school administrations to compromise quality. A few schools even shut down which, among other things, contributed to unemployment.”

However, Dr Faham Farooq, an active member of the Citizen Movement, which had filed a petition against private schools, expresses unhappiness over the latest judgment. “Certainly, Saqib Nisar is our hero,” he says. “He had given the decision considering the agony of millions of parents. His judgment had decreased the burden on already financially-strained parents.”

Like Justice Saqib Nisar, the era of former chief justice, Justice Iftikhar Muhammad Chaudhry, remained in the public eye because of some very popular judgments — and statements. In his speech at the National Judicial Conference in 2011, Justice Chaudhry had stated: “The Judiciary’s receptive mindset is reflected by the fact that the judges have given landmark judgments and addressed the real issues in a very illustrative manner, laying down new principles while interpreting the law”.

One of the eventual outcomes of Justice Chaudhry’s judgments is the $5.976 billion (Rs944.21 billion) penalty, in the Reko Diq case, announced by the International Centre for Settlement of Investment Disputes (ICSID).

Federal Minister for Science and Technology Fawad Chaudhry an eminent lawyer in his own right, had condemned the judgment passed by the former chief justice of Pakistan. Through a tweet earlier in this month, he even demanded that the former chief justice be put behind bars for causing an “irreparable loss to the nation”.

However, Justice Chaudhry, in a recent interview, said that Reko Diq’s natural resources were worth more than $1 trillion, so that a $6 billion penalty was a drop in the bucket and certainly no disaster for the country. According to him, the three-member bench he headed had, in fact, exposed gigantic corruption and saved billions of dollars.

Defending his suo motu actions, he also referred to the Pakistan Steel Mills privatisation case: “In 2005, the government was selling the Steel Mills for Rs 21 billion, which actually is worth billions of dollars. It was the Supreme Court that saved the national asset by declaring the sale null and void.”

In 2006, the Supreme Court accepted a petition filed by the Steel Mill Workers’ union challenging the process of privatisation. According to the petition, the process adopted for privatisation was illegal and violated the Articles 2A, 3, 4, 5, 9, 23, and 38 of the Constitution.

Pakistan Workers’ Federation president Chaudhry Naseem Iqbal, says that the apex court decision not only saved a precious national asset but also secured the livelihoods of 10,000 workers and their families.

This perception is challenged on the basis that the payable debt of Pakistan Steel Mills has kept on increasing. According to the May 2019 report of the State Bank of Pakistan, the debt has reached Rs 43 billion.

During the hearing of the Steel Mills case, Justice Chaudhry also remained in the news for banning the spring festival of Basant. Till 2005, kite-making and thread-manufacturing had become an industry, no longer limited to major cities as the art flourished in villages and towns across the country.

Kite Flying Lovers Association president Khalid Malik, says that over the years, Basant, has proven a festival for the rich, and livelihood for the poor because tens of thousands are connected with this trade.

“This mega event has generated business activity in the non-formal sector to the tune of billions of rupees. Numerous businesses, including transport, catering, hotels, car rentals, fireworks, spinning and paper mills – are direct beneficiaries of this event,” says Malik.

However, on October 25, 2005, in a suo motu case, a Supreme Court bench imposed a ban on flying, manufacturing, and buying and selling of kites and twine. During the hearing, a report was submitted stating that Lesco’s installations worth Rs 1 billion had been damaged due to the event. In 2005 alone, 19 people had died and over 200 were injured due to the use of controversially superior strings by some kite flyers, people falling to their deaths from roofs and indiscriminate firing – all during the festival of Basant that year.

In 2007, when the ban was lifted for two days, police seized 282 illegally held weapons from Lahore’s Mozang area alone. Seven people were killed and 10 injured in 2006 despite special measures, taken to avoid any untoward incident. Following the court order, the Punjab government issued a notification on February 27, 2007 banning Basant in the province.

Among other populist litigations that resulted in serious economic repercussions was the Lahore High Court’s order halting the Orange Line Metro project for 22 months. In January 2016, the two-member bench of Lahore High Court comprising Justices Abid Aziz Sheikh and Shahid Karim ordered the suspension of the Orange Line Metro Train project (OLMT).

As per the original agreement signed with the Chinese authorities, the project was to be completed in 27 months, flat. In December 2015, China had approved a Rs 162 billion ($1.6 billion) loan for the project, which was set to complete in August 2018. However, owing to a 22-month-long halt, the cost of this project has risen to Rs 416 billion ($2.6 billion).

Also read: A tough ‘pil’ to swallow

Petitioner in the case, Advocate Muhammad Azhar Siddique, insists the OLMT is a white elephant that will cause nothing but disaster to heritage and economy. “This project is a violation of the Public Procurement Regulatory Authority (PPRA) rules. Moreover, half a million people have been displaced and their businesses destroyed. Aside from this, 11 historical sites are in great danger,” he says.

However, spokesperson of the former Pakistan Muslim League government, Malik Muhammad Ahmed Khan, says that once the train becomes operational it has the potential to provide fast commute to 250,000 people every day – a figure which he claims can be increased to 500,000 per day by 2025.

Shehryar Warraich

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The author is a member of the staff and can be reached at [email protected]

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