Daily Times Editorial Dec 19, 2009

Judicial peevishness

These are trying times for NRO beneficiaries, some of whom are serving ministers of the government. One such prominent member of the cabinet, Interior Minister Rehman Malik has landed himself in the soup in more ways than one. Not only has his own ministry placed his name on the Exit Control List (ECL) after the Supreme Court’s (SC’s) verdict, the SC has issued him a contempt notice for transferring FIA director Tariq Khosa. Mr Khosa was assisting the court in the investigation into alleged irregularities of Rs. 22 billion in the Pakistan Steel Mills (PSM)), an issue of which the SC has taken suo motu notice. Mr Rehman Malik, whether deliberately or inadvertently, is charged with misinterpreting the SC’s orders by transferring Mr Khosa and appointing a joint investigation team for the purpose instead. Mr Malik’s defence, so far as one can gather, is that he thought the SC was displeased with the way Khosa was conducting the investigation. It now turns out that the opposite was in fact the case, hence the SC’s irritation with Mr Malik. Mr Khosa has since, in line with the SC’s wishes, been reinstated. Whatever the facts or reasons, Mr Malik now has no other recourse except to tender an unconditional apology and throw himself on the mercy of the court. Failing that, in the SC’s present unforgiving mood, he may face graver embarrassment than the restraint placed on him vis-à-vis the Exit Control List. Without meaning to be presumptuous, the court too should show magnanimity and forgive the errant minister if he does as suggested above. This will help to enhance the respect and dignity of the court, and avoid the impression of anger or peevishness, which is obviously not the honourable court’s intent.
The PSM has been the plaything of successive rulers from its very inception. From stuffing its rolls with unnecessary employees to skimming off the cream from its profits, the PSM, an inherently precarious enterprise on the touchstone of scale, has been hard done by over the years. Not only that, in recent years it has been at centre-stage in some extremely dramatic developments and events in the country’s life. Former prime minister Shauqat Aziz’s alleged attempt to buy the PSM for a song in the name of privatisation through his alleged front man Arif Habib, an attempt stymied by Chief Justice Iftikhar Mohammad Chaudhry, and which was one of the factors in Musharraf’s decision to remove the Chief Justice, with the well known consequences that followed, is one example. Stories and rumours since the present government took office that powerful interests were milking the PSM and had reduced its financial health to precariousness, have been the stuff of urban legend of late. The SC’s suo motu notice of such reports has once again placed the affairs of PSM in the limelight. The debate about state-owned versus private enterprise is unresolved in the case of PSM so far. While the ills of the state sector are by now well documented, unfortunately the shenanigans of the private sector in the realm of cartelisation, hoarding, blackmarketing and other sharp practices have left the country in a quandary about the best way forward for the economy.
In the absence of a mechanism that can monitor and address the ills of our society in terms of the struggle against corruption of all kinds, the SC’s intervention can only be welcomed. However, our lordships may be cautioned about the possibility that judicial activism sometimes runs the risk of intruding on turf strictly belonging in our constitutional scheme of things to other institutions of state. In the post-judiciary restoration era, the respect and confidence enjoyed by the superior judiciary must be safeguarded through judgments and steps that do not offer any hint of the expansion of judicial purview beyond what may affect in the long run its own dignity and respect. If not exercised with, and balanced by, the well known maxim of judicial restraint, the present scenario raises doubts in some minds whether judicial intervention in many matters may veer towards judicial dictation.