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Is there's a sense of déjà vu in the Supreme Court's halls

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There's a sense of déjà vu in the Supreme Court's halls

AMIDST a once-in-a-century pandemic, there is a sense of déjà vu in the lofty halls of the Supreme Court.

Not so distant memories of judicial activism have been rekindled.

On Monday’s hearing in the suo motu case relating to the federal and provincial governments’ handling of the coronavirus contagion, the apex court excoriated both for their lack of cohesion in a situation that “demands consensus and uniformity”.

The bench also set aside the Punjab government’s decision to ban inter-provincial movement on the grounds it violated the citizens’ right to move freely in the country.

In a sign of its extreme displeasure at how matters are developing, the bench even came close to ordering that Special Assistant to the Prime Minister on Health Dr Zafar Mirza be removed from his post.

The judges, however, stayed their hand when the attorney general pleaded that such a step at this critical juncture would be disastrous for the country’s efforts against the spread of the virus.

A crisis that upends people’s lives and jeopardises their very means of survival is by definition one that involves fundamental rights, whose violation is the legal basis for the Supreme Court’s suo motu powers.

However, the governments at the centre and in the provinces — indeed in the world at large — are grappling with an emergency for which there is no precedent.

In these circumstances they must have the space to make executive decisions while relying on their best judgement without having to second-guess every step.

The sense of paralysis and demoralisation that could set in otherwise would lead to complete disarray in the short term and to deleterious unforeseen consequences in the future.

Former chief justice Iftikhar Chaudhry’s tenure is a sobering reminder of what can transpire when judicial activism impinges on the executive sphere.

The Chaudhry-led Supreme Court overturned the Pakistan Steel Mills’ privatisation, bringing a premature end to the divestment of state enterprises that have saddled the country with hundreds of billions of rupees in accumulated losses.

In 2013, an apex court bench headed by Mr Chaudhry declared as null and void the government’s agreement with an international consortium for mining rights in Balochistan’s Reko Diq.

A World Bank arbitration court last year ordered Pakistan to pay the consortium a staggering $5.9bn in reparations.

The damage to the country’s reputation as a sound investment destination for global players will linger for a long time to come.



Published in Dawn, April 15th, 2020
 
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