Sermons alone won’t work

There can be no quarrel with the proposition that the Supreme Court must exercise its suo motu powers where the pivotal rights of citizens – the right to life, liberty and dignity – are under threat. And while the apex court should sparingly use its Article 184(3) jurisdiction, when it does take cognisance of events and issues involving these pivotal rights there is little room for exercise of restraint in upholding these rights, prescribing remedies and imposing penalties on the culpable.
Judicial restraint is certainly a virtue, and must be practiced to avoid getting dragged into the political thicket or opining on policy matters best left to the executive. But judicial cognisance of breach of fundamental rights – be it the missing persons’ case, the security situation in Balochistan or the Karachi mayhem – is of limited utility if the policies and actions of the government are not subjected to strict judicial scrutiny with a view to affixing responsibility and ensuring corrective action.
And this is where the Supreme Court verdict in the Karachi suo motu case does not measure up to expectations, as the link between the declarations of the court, its observations and its directions is tenuous at best. There are at least three issues that the court flags in its observations without clearly describing the problem or giving clear instructions on how to fix them: depoliticisation of the police; delimitation of constituencies; and deweaponisation of Karachi.
Let’s start with the police. The Supreme Court records and highlights the confession of the IGP that almost 30-40 percent of his force either doesn’t respond to orders or sympathises with criminals. It also censures ad-hoc appointments within the Sindh Police. But the operative part of the ruling merely says that the police ought to be depoliticised.
What does this mean in legal terms? Should officers sympathetic to a political party be ousted? Should posting and transfers driven by partisan considerations be undone? Should appointments made during the present government’s tenure be cancelled?
Would it not have been more helpful if the Supreme Court had issued the direction that an internal police inquiry be conducted by a reputable panel of officers, to (i) draw up a list of appointments made to the Sindh Police that are illegal, (ii) review the transfers and postings of officers over the last few years to determine if they are in breach of the criterion laid down in the Police Order (which was applicable till last month) and tantamount to abuse of discretion, and (iii) investigate, document and take disciplinary action against officers of the Sindh Police who have refused or showed reluctance in discharging their duties and following lawful orders?
The court has observed that delimitation of constituencies is required and “boundaries of administrative units like police stations, revenue estates etc. ought to be altered so that members of different communities live together in peace and harmony” instead of creating “No Go Areas”. It has further observed that the Election Commission may initiate constituency delimitation on its own.
Is the court saying that members of belligerent communities ought to be clubbed together so that they neatly fall within administrative units or should they be dispersed widely so they are not concentrated in distinct neighbourhoods? Why is constituency delimitation required and what criteria should be used for such purpose? Is it the court’s thesis that representation of ethnic communities in the Sindh assembly and consequently the Sindh government is not proportionate to their numbers?
Would it not have been preferable had the court directed the Election Commission to undertake an inquiry to determine whether the electoral constituencies of Karachi have been gerrymandered to benefit a particular party or ethnic group, over-represent it in the assembly and government, and defeat the one-man-one-vote principle that lies at the foundation of a democratic system?
And further direct that if there is evidence of gerrymandering resulting in the manipulation of electoral outcomes, the Election Commission should undertake fresh delimitation on the basis of objective criteria: fresh census and population distribution within the city; historical pattern of delimitation; geographical contiguity; and administrative needs. Without clarifying the problem that ought to be addressed and the mechanism, how will the court determine if its instructions are being complied with?
And then there is the issue of cleansing Karachi of weapons. The court has proposed promulgation of new legislation, registration of existing weapons with Nadra as well as cancellation of licenses where holders don’t need them. Here again the court could have directed that an inquiry be conducted to draw up a list of the licenses issued in breach of the prevailing law and policy in order to affix liability for abuse of authority or discretion.
Only when it is clear where the problem lies – indiscriminate policy for issuance of licenses, abuse of discretion in granting licenses, non-registration of licensed weapons, or proliferation of illegal weapons – would it make sense to recommend remedial measures to address it.
Finally there are some explicit directions issued by the court: form a commission to assess loss of life and property and recommend grant of compensation to victims; place on record copies of judicial inquiries conducted since 1985; IGP to collect record of police officers eliminated after 1992 and 1996 law-enforcement operations in Sindh; IGP and DG Nadra to identify illegal foreigners and proceed against them under law; eliminate ‘No Go Areas’; ensure that an independent and de-politicised investigation agency conducts criminal investigations, a witness protection programme is introduced, competent prosecutors are engaged and there are no delays in appointing anti-terrorist court judges; and finally, create a committee headed by Chief Justice Sindh High Court, assisted by the chief secretary Sindh and heads of security agencies, “to supervise and ensure that law-enforcement agencies take action indiscriminately”.
Amongst these the only questionable direction is the one that requires the Sindh chief justice to supervise law-enforcement agencies and their actions and consequently drag the judiciary into the domain of the executive. But the basic problem with the directive part of the Karachi suo motu verdict is not with the directions issued, but those omitted.
While the broad problem areas have been identified as part of court observations, instead of defining the problems and solutions in legal terms and identifying specific remedial measures to be undertaken within specified timelines that are juridically verifiable and enforceable, the court has elected to rely on sermons and platitudes.
It is true that every court system is confronted with an inherent limitation: it must rely on the executive for enforcement of its decisions. But such limitation only underscores the need to issue clear and enforceable directions that limit the room for an unresponsive government to beat around the bush.
Notwithstanding whether a jurisdiction follows the inquisitorial or the adversarial model of adjudication, the primary object of the criminal justice system remains vindication of rights and holding responsible those who violate them. The penalties that come along with the finding of culpability are essential to ensure that ancillary objects of the penal justice system – reform, retribution and deterrence – are realised and individuals are held to account for their acts and omissions.
The Karachi suo motu case has affixed responsibility for the violence, death and destruction in the city on the federal and provincial governments, political parties and individuals perpetrating crimes. And while it has issued directions to ensure that individual offenders are effectively prosecuted, it has neither endeavoured to hold political parties accountable for their abetment of crimes nor provided for the prosecution and punishment of public office holders for their malfeasance and nonfeasance. A more thoughtful verdict could have achieved all of this.
(Concluded)
The writer is a lawyer based in Islamabad. Email: sattar@post.harvard.edu