COMBATING TERRORISM

In the last 7 years Pakistan has been constantly under terrorism related violent attacks and there has been widespread anarchy. All aspects of the society, including the criminal justice system are stretched to their limit.

In the post-election scenario, fighting terrorism will be one of the biggest challenges faced by the new governments, both federal and provincial. Two views seem to emerge on how to best fight terrorism. There is the “lets talk it out with them” approach, which has been tried in the past and is likely to be the choice of the new government. Then there is the suggestion from some quarters that the most dangerous terrorists need not reach the court and are instead killed in a drone, ‘disappeared’ or ‘encountered’. This also represents the present modus operandi of the security establishment. These divergent views also represent the broad spectrum of counter-terrorism debate in the west.

The former view, which I will call the “conciliatory approach”, treats terrorism as a type of criminal activity that can be fought within the rule of law and the human rights framework. The proponents argue that repression and injustice act as a recruiting sergeant to the extremist fringe and marginalize those whose support is vital to effectively fight the terrorist threat. They also undermine the values that separate us from the terrorist, the very values we should be fighting to protect. Finally, the act of curtailing civil liberties bring us closer to anarchy not far.

History tells us that the immediate response of almost all democratic governments to major terrorist attacks is to give greater powers to law enforcement agencies. These actions are dictated by panic and are more akin to a knee-jerk-reaction. This has happened in the past, and some say will continue to happen in the future. The clearest example from the recent past is that of Nazi Germany, one of the most repressive regimes in modern history, which was established in a hysterical response to the Reichstag fire (arson attack on the Parliament). This approach to counter terrorism is also known as the “war model” and has been invoked by United States and Great Britain in their so-called “war on terrorism” post 9/11 attacks. In such a scenario all but few civil liberties can be revoked by the State. Invariably, once fear subsides, there is judicial action, which counteracts against the abuses of the executive. The downside to this approach is that in a conventional war you know who your enemy is and where to find its forces.  To win the war you need to figure out when and how best to attack. This is not the case with the type of terrorism we face, where the central problem is to figuring out who the enemy is and where they are.

However there is a third way of thinking about terrorism and how to respond to it. Since technological developments have made it increasingly easy for small groups or individuals to cause devastation, the only way to counter this threat is to increase the ability of government to monitor and investigate individual behavior. However the erosion of civil liberties should be subject to safeguards. Dysfunctional though it may be; success in defeating terrorism is dependent on a criminal justice system that has some semblance of due process.

Any changes to the law and powers of the law enforcement personal fighting terrorism should be formulated based on recommendations by a commission composed of constitutional experts, parliamentarians, and law-enforcement experts. I would be way out of my depth to try to anticipate what such a commission would or should come up with.  But in broad terms the solution will involve a balance between effective counter-terrorist operations while preserving the spirit of our constitutional rights.

The arbitrary use and abuse of government powers can be checked by creating alternate institutions within the government to monitor and balance the actions of other arms of the government. If effective defense against terrorism requires, suspensions of habeas corpus, secret searches – as has been happening – then these actions should be subject to monitoring by the independent judicial bodies. The idea is to try to limit executive powers that may be subject to abuse by creating institutions and judicial procedures to monitor their application. Including power to conduct audits and make such audits available to the public.

Legal changes that will restrict civil rights are inevitable given the dilemmas posed by terrorism. We cannot, however, allow abuses to take place all in the name of greater national exigency.

Writer is a Barrister-at-law and can be reached at uzair@ahmeduzair.com

“SHALE GAS” AND THE RISKS WE ARE TAKING

The present demand for natural gas stood at 8 Billion Cubic Feet (BCF) during the winters whereas the national production from conventional sources stood at 4.2 BCF. It is no secret that the supply for natural gas has been unable to meet demand. New fields brought online over the last 3 years have been barely able to maintain the current levels of production. The reason for this flattening production is the reduced production from the main natural gas fields: Sui (which has seen a fall of 4.4%), Qadirpur (which has seen a fall of 2.0%), Zamzama (which has seen a fall of 23.1%), Sawan (which has seen a fall of 1.1%), Kandkhot (which has seen a fall of 5.5%) and Miano (which has seen a fall of 4.8%). These fields together contributed nearly half of the total production of Pakistan.

The gas fields (especially Sui) that have been responsible for cheap supply of natural gas for the last 40 years are in decline. These fields are passed their peak production. The decline is an irreversible trend for any finite natural resource. This fact also represents an often-ignored process of conventional hydrocarbon productions: natural gas field (like an oil field) does not yield flat levels of production at any stage of their extraction. Initially, there is a gradual rise in production until it reach a peak, which is approximately at the half way point of the total recoverable reserve, after which decline sets in. From this point onwards the production is harder and yield less and less economically viable. The cumulative effect of multiple gas fields follows the same trend. The trend we see in our natural gas production over the last 5 years is that it has plateaued-out and is expected to decline rapidly from here on in. This has forced policy-makers to look for alternative sources of domestic natural gas; i.e. tight gas, shale gas and coal-gasification (converting coal to gas).

In this article I intend to address the question; whether shale gas can help solve our energy crisis and what it means for our environment.

ENERGY SOURCE

Source: OGDCL, Islamabad

To answer the first question we must first look at the role natural gas plays in our economy. Natural gas as a source of energy to the economy constituted (48%) of the total. In terms of consumption the breakdown is as follows: power sector (35.5%), general industrial use (25%), domestic use (15.20%), fertilizer (both feedstock and fuel) (15.90%), transport (CNG) (4.60%). These sectors are dependent on cheap and abundant supply of natural gas. The said supply has allowed our industries (in particular textile but other industries include plastic) to remain internationally competitive. Note that natural gas is used both as fuel and as a feedstock for the manufacturing of a number of chemicals and products; fertilizer (Ammonia) is one such example. Therefore provision of natural gas is essential for the smooth running of our economy. Needless to say that we must not lose sight of our long-term goal of getting rid of our dependence of hydrocarbons but natural gas is an acceptable bridge. So where will we get our natural gas if we are running out of conventional sources? The most promising source is shale gas.

 

SECTOR WISE GAS CONSUMPTION

 

Source: DEVELOPMENT OF UNCONVENTIONAL RESERVOIRS IN PAKISTAN By Dr. M. Saeed Khan Jadoon, OGDCL, Islamabad APRIL 11, 2011

Geological studies show that gas could be found in deeper, denser “unconventional” shale formations (called plays). These plays act as both a source of gas (because shale is where natural gas is actually formed) and as its reservoir.  Natural gas is stored in shale in three forms: free gas in rock pores, free gas in natural fractures, and adsorbed gas on organic matter and mineral surfaces.

In the early 2000s, the combination of two existing techniques led to a breakthrough allowing US Companies to produce shale gas. One is horizontal drilling. Drillers penetrate the shale laterally and vertically. This exposes greater surface area of the rocks for extraction and enables multiple wells to be created from each drill pad. The other is hydraulic fracturing (or fraking), a process involving water, sand and a chemical mixture pushed down a well at thousands of pounds of pressure (as much as 13,500 pounds of pressure per square inch) which causes cracks in the shale and releases the hydrocarbons.

WORLD’S UNCONVENTIONAL SOURCES OF NATURAL GAS

 

 Preliminary studies have shown that at least 33 Trillion cubic feet (out of 204 Trillion cubic feet of total reserves) of unconventional gas reserves trapped in rocks is recoverable from available technology. The Baluchistan Basin, the Suleiman Foredeep Basin and the Lower Indus Basin offer significant potential. As technology improves so will the recoverability and the cost of production.

In 2011 the Ministry of Petroleum and Natural Resources issued a fresh policy for exploration of unconventional natural gas. Pakistan Petroleum Limited invited fresh bids under its new 2011 policy to auction licenses to explore and develop several blocks in Dera Ismail Khan (KPK), Badin (Sind), Naushero Firoz (Sindh) and Jungshahi (Sindh). Under the new policy, exploration companies are being offered considerable financial incentive to explore and produce natural gas. The leases are being offered for 40 years. Provided enough incentive and facilities the project of shale gas is technically and financially feasible. It is for this reason that many international companies have shown interest in the project. Two such companies are Polish gas monopolist PGNiG and ENI of Italy.

AREAS WHERE THERE ARE RESERVES IN PAKISTAN

 

Source: DEVELOPMENT OF UNCONVENTIONAL RESERVOIRS IN PAKISTAN By Dr. M. Saeed Khan Jadoon, OGDCL, Islamabad APRIL 11, 2011

That being said, the production of natural gas from shale is not without its hazards. In addition to being technologically demanding and expensive to produce; the process can be very dangerous for the environment. The liquid used in fraking contains chemicals that are harmful to humans and our habitat. Ingredients include water and sand (98-99.5%). The remaining chemicals can be hydrochloric acid (initiates cracks), methanol (inhibits corrosion), glutaraldehyde (kills bacteria), and ethylene glycol (winterizes product). In terms of weight even 0.5% can amount to many tons of toxic material per drill pad. Chemicals used in United States by local companies are known to be carcinogenic, mutagenic, cause chemical pneumonia, and toxic to aquatic organisms.

The biggest risk from these chemicals is in the form of water contamination. These shale gas plays are supposed to be many layers of impenetrable rocks under the water table but when the fraking fluid goes down the well it can leak. The well walls are normally made of two layers of steel casing and two layers of heavy-duty cement. However the risk exists. In the United States, there have been many reports of ground water contamination as well as high levels of methane in water wells. Therefore any production must be tightly regulated and supervised.

The second possible source of contamination is the large amount of produced (waste) water that comes back out of the well. This chemical laced water requires treatment before disposal or reuse. The treatment and disposal is an important and challenging aspect of production. In USA the waste water is emptied into a pit where a lot of it can seep right back down into the ground. Evaporation techniques are used to reduce the quantity of waste water to be transported from site. This too is also extremely dangerous and reports have shown that it can cause health risks to humans and animals alike.

Due to these, and other, considerable environmental hazards the production of shale gas should not be allowed to take place near populated areas or where our sources of water are present. It is clear that the exploration of natural gas is a necessary if our economy is to survive, let alone grow. However, and as stated above, the exploration has to be supervised to prevent any environmental risks.

The upshot of the above discussion is that the days of cheap energy are limited. We must get ready to pay more for our energy. Extraction and processing from unconventional sources will be more expensive and there are considerable environmental hazards that have to be taken into account in granting any concession. In the absence of tight regulations and close monitoring the pollution of ground water could spell disaster for us and our agriculture.

Judicial Activism Of The High Court Using SUO MOTU

1. INTRODUCTION The question of “judicial activism” is of an increasing relevance to us in Pakistan; more so following the judicial “revolution” epitomized by the restoration of the Chief Justice of Pakistan. Judicial activism derives its existence from the judgments of the Chief Justice of the US Supreme Court John Marshal in the early 19th century. In the landmark case of Marbury vs. Madison1, it was declared that “an act [of another branch of government] repugnant to the Constitution is void”. The term “judicial activism” derives its origin in American political and legal discourse of the 1950s where Arthur Schlesinger Jr. in an article titled “The Supreme Court: 1947” profiled the nine Justices as either “judicial activists” or “champions of self restraint.” 2 2. JUDICIAL ACTIVISM AND JUDICIAL RESTRAINT As observed by Arthur Schlesinger Jr., two schools of thought emerged, i.e. those that ascribe a much limited role to the judiciary (they being the ‘champions of self restraint’), and those that argue in favour of greater judicial scrutiny (the ‘judicial activists’).The champions of self restraint, jurists such as Alexander Bickel3, John Hart Ely4, highlight the anti-majoritarian nature of the judiciary, the fact that it is appointed and not directly accountable to the people and that by actively questioning the measures taken by the executive; the judiciary is usurping the power of the elected branches of the State.5 Since the judiciary is not elected it does not have any legitimacy to over-rule (let alone set) government policy, unless an action is in direct conflict with the Constitution. 6On the other side of the scale, the followers of judicial activism justify going beyond and even against the intentions of those who have drafted the law. They argue that this greater role of the judiciary is vital to ensure a stronger democracy and a just and stable society. In other words; it is necessary to keep a check on transient majoritarianism (protection of minority rights and the underprivileged), and that it is necessary for the protection of liberty, property and life. The Judiciary does not act outside the democratic setup, rather it is a part of it, and its decisions are always under scrutiny by the people. 7 There is no denying that checks on the executive authority are absolutely essential for effective running of a democratic society. The question then is that of degree, extent and scope. Of particular interest to this author is the suo motu8 use of judicial powers in aid of judicial activism. It may be observed that judicial activism is by no means a recent phenomenon in Pakistan9 but suo motu exercise of judicial power is. 10 3. SUO MOTU Judicial activism is invariably (but not necessarily) expressed in cases of judicial review i.e. people versus the State where an aggrieved person or group seek the court’s intervention against an action – or lack thereof – on part of the State. Exercise of suo motu11 can be classified as an extension of judicial review. However, and more crucially, in cases of suo motu the judge takes cognizance of a matter on his/her own initiative. On other occasions, simple applications filed in the court are converted into/deemed to have been filed as petitions. Another distinction may be drawn here. The courts, being a creation of the Constitution, derive their authority from the Constitution or other laws that confer jurisdiction. The Supreme Court of Pakistan has been expressly conferred powers under Article 184 (3) of the Constitution to take suo motu action for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II of the Constitution. The said article reads as follows: (3) “Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article”. No such power is conferred to the High Courts by the Constitution i.e. to take suo motu action against the executive. The Constitution in fact goes so far as to state in Article 175 (2) that: (2) “No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law”. Therefore while a lot of the arguments for and against judicial activism in general, and suo motu in particular, are also applicable to the apex court, I will restrict my observations to the suo motu exercise of judicial power by the High Court. 4. HISTORICAL PERSPECTIVE: THE CONSERVATIVE VIEW In the 1956 Constitution Article 170 defined the scope of the jurisdiction of the High Court conferred upon it; the Article read as follows: Art 170: “Notwithstanding anything in Article 22, each High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of any of the right conferred by Part II and for any other purpose”. The Supreme Court has long maintained that the High Court is not competent to commence proceedings and issue directions suo motu. In the Supreme Court case of Tariq Transport Company, Lahore vs. Sargodha-Bhera Bus Service and other12, while interpreting Article 170 (above) Chief Justice Muhammad Munir observed that “… high court, therefore, is not competent merely on information or of its own knowledge to commence certiorari proceedings or other proceedings of a similar nature under [Art. 170] …”13. Mr. Justice Shahabuddin in the same judgement also observed that; “… The normal procedure is to’ move a Court by a petition, or a complaint or a plaint and in cases where power to act suo motu is given it is specifically conferred as in S. 115, Civil Procedure Code, and S. 435, Criminal Pro­cedure Code. I can see no ground for thinking that the intention of the Constitution was to empower, ‘the High Courts to send for the records of any of the proceedings before any executive or quasi‑judicial authority and satisfy themselves that every depart­ment of the Government is functioning satisfactorily.”14 Mr. Justice Cornelius made similar observation, holding that, “… I cannot conceive that the Article [175] can ever be thought to include a general power in the High Court to conduct searching enquiries into the internal working of such an institution as the R. T. A.”15 The reservations of the Supreme Court in this case were clear. If the High Courts started conducting inquiries into the affairs of government departments in order to “satisfy themselves” the State machinery would grind to a halt. In two subsequent cases the Supreme Court reiterated the above mentioned position; first in the case of Fazle-e-Haq, Accountant-General, West Pakistan vs. The State16 and then in the case of Islamic Republic of Pakistan vs. Muhammad Saeed17 In the 1962 Constitution the jurisdiction of the High Courts was defined in Article 98 that made it even more explicit that issuance of writ were subject to applications by aggrieved party; in case of certiorari and mandamus or any person in case of habeas corpus and quo warranto. In the land-mark judgment titled Shahnaz Begum vs. The Honourable Judges of the High Court of Sindh and Balochistan and another18 the Chief JusticeHamood-ur-Rahman in respect of the Constitution of 1962 observed that; “ … under the 1962 Cons­titution a High Court has been given the power of judicial review of executive actions by Article 98 in certain specified circum­stances but even in such a case the High Court cannot move suo motu for, it is specifically provided in each of the sub-clauses (a), (b) and (c) of Clause (2) of Article 98 that only “on the application of an aggrieved party or of any person,” the High Court may make the orders or issue the directions therein specified.” 19 The Supreme Court made it clear that “… it is of the utmost importance to remember that a superior Court should not allow itself to be influenced by sensational reports in newspapers or by what he may have heard or read outside the Court, for in the first case it may unwittingly be encouraging a trial by the press and in the other case unnecessarily be exposing itself to criticism that its actions are motivated by bias.”20 Again the reservations of the Supreme Court are clear and they cannot be truer in this day and age when media organizations are in competition with each other over viewership and the reporting is invariably sensationalized.21 The provisions on powers of the High Courts in the present Constitution more or less resemble those in the 1962 Constitution. The Supreme Court therefore reiterated its declaration of law in 1982 that the High Court does not have suo motu powers observing that “…It is settled law that in writ proceedings, the relief must be confined to the prayer made in the writ petition and the High Court cannot issue a writ suo motu.”22 5. POST-CONSERVATIVE POSITION The above referred position is representative of self restraint; at-least so far as the High Court is concerned and has held fort for quite some time.23 However, since the judicial “revolution”, it is clear that the judiciary sees a wider role for itself in the affairs of the State. In the last 5 years there have been many instances of suo motu actions by the High Courts, most notably, the Lahore High Court. The majority of the public has welcomed this development and has brought with it astronomical expectations from the judiciary. A number of cases were taken up suo motu by the previous Chief Justice of the Lahore High Court Mr. Justice Khuwaja Muhammad Sharif. These cases ranged from the negligence of doctors resulting in death,24 increase in bus fares,25 the government’s decision to withdraw the promotion of prison department employees,26 the ZARCO Exchange fraud27 and the suo motu notice on the sugar price hike28 just to name a few. Mr. Justice Sharif reportedly remarked that suo motu powers of the judiciary [i.e. of the High Courts] was an effective way to check violations of law by the executive and to protect the rights and the lives of the poor in the country and that “I will take notice of every matter in which the executive is showing slackness, as justice should be dispensed at all costs.”29 Supporters of the post-conservative judicial activism highlight the inefficiencies of the other branches of government and state that people harbor greater expectations from the judiciary as most [government] departments have failed to deliver on what was expected of them.30 Justice Shri V.R. Krishna Iyer of the Indian Supreme Court, on the question of judicial activism observed that “the true strength and stability of our polity is the society’s credibility in social justice, not perfect ‘legalese’, and this does not disclose any difference to this fundamental value.” This in effect represents the essence of post-conservative jurisprudence at the Lahore High Court. i.e. to do away with legal hurdles as “justice is to be dispensed at all costs.”31 Another important aspect of the modern approach is the perception of ‘dispensation of justice’. An Executive that is constantly looking over its shoulder is starting to – albeit at a snail’s pace – think twice before usurping the public trust. Finally, the proponents of judicial activism can argue that there is a tacit consent on the part of the people of Pakistan when they (twice) took part in the campaign for the restoration of the judiciary.32 6. JUDICIAL RESTRAINT IN PAKISTAN With the advent of this post conservative trend a school of thought has emerged that opposes this development. They warn against greater judicial activism and by extension suo motu exercise of judicial power. They highlight the jurisprudence of the last five decades.33 Secondly, they are argue that the High Courts, by taking suo motu notice, are discouraging people from following the due process of the law i.e. the right of an aggrieved person to move the Court when his/her right is being infringed/violated.34 Thirdly, cases that are already pending before the courts are delayed even further. As of 30th June 2010 there are nearly 1.65 million cases pending in the Courts in Pakistan, out of which more than 85,000 are before the High Courts. While the High Courts take suo motu notice of issues in the news, these cases are reprioritized].35 Why would one – as a litigant – want to spend long and arduous years in courts following the procedure prescribed by law?36 Fourthly, if the justification for suo motu action is “justice delayed is justice denied”, do those litigants whose cases are already pending before the High Court not have the same right Then there is the question of practicality. It is simply not possible for the High Court to take suo motu notice of every indiscretion of the executive. Therefore the High Court is – in effect – choosing which matters to take notice of and which not. What is, in that case, the criterion for such a selection? What of those citizens whose plight is not taken up by the High Court? Finally they argue that how can an unrepresentative and unaccountable body or person decide on policy matters that should be the exclusive purview of the elected officials?37 Clearly it is an inherent contradiction to the concept democracy that policy is determined by the judiciary. In this regard the example of the suo motu notice taken by Lahore High Court’s Divisional Bench of the high price of sugar may be mentioned. The Court ordered the price of sugar to be fixed at Rs. 40 per Kg. This level of micro-management of public policy is quite alarming. The outcome has been that neither the price has been fully stabilized nor fully floated, as there is constant risk of artificial interference.38 Wouldn’t a long-term solution aimed against hoarders, by enforcement and strengthening of anti-trust and anti-monopoly laws be more effective? 7. CONCLUSION Therefore it may be concluded that notwithstanding the nobility of the objective, it is simply not possible for a Court of Law to ensure effective running of each and every department of the government. Even with its widening sphere of influence – which is a reality – the judiciary must not overwhelm itself by this ever greater public expectation and not let itself get embroiled in micro-managing the affairs of the executive, or for that matter, the legislative. If the judiciary decides on policy matters such as the price of sugar or carbon levy, it should then expect to share the responsibility should things don’t go according to plan. The judiciary cannot endeavor to cause a reformation of the society. It is not its role and for this reason that the Supreme Court, in the recent judgment on the National Reconciliation Ordinance observed that “… if the Court attempts to become the arbiter of what is good or bad for the people, it will inevitably enter the minefield doctrines such as the ‘law of necessity’ or salus populi suprema lex.” While one cannot categorically state that there has been greater vigilance on the part of the executive, or that there will be any lasting effect of the suo motu use of judicial power, as only time will tell. The judiciary however needs to recognize its own limits and strike a balance. No rule ought to be laid down as to whether or when or to what extent judicial power may be exercised suo motu. It is my opinion that neither should there be an absolute bar, nor should it be unbridled authority and it is for the High Court for itself to recognize and lay down its own limitations. 1 5 U.S. (1 Cranch) 137 (1803). 2 January 1947 edition of Fortune magazine. 3 A constitutional expert and one of the most prominent critics of modern judicial activism. See particularly The Least Dangerous Branch (Bobbs-Merrill, 1962). The title of the book in turn comes from the essay  Federalist #78 by Alexander Hamilton who referred to the [U.S.]  Supreme Court as the “least dangerous” branch of the government because it possessed neither the “power of the purse” nor that of “the sword”. See also A Conversation with Chief Justice John Roberts About the U.S. Constitution. 4 Another prominent Jurist of the 20th century who in Democracy and Distrust: A Theory of Judicial Review wrote that the notion that judges may infer broad moral rights and values from the Constitution is radically undemocratic. In Pakistan we have the example of Mian Saqib Nisar, Judge of the Supreme Court of Pakistan, once remarked in Court while sitting as a High Court judge that “[suo motu] is not an unbridled power and there should be some check on it” 5 See for example the dissenting note of Justice Antinia Scalia in Romer vs. Evans 517 U.S. 620 (1996) 6 See for example Judicial Activism: Bulwark of Freedom or Precarious Security? By Christopher Wolfe 7 Ibid 8 Suo motu is a Latin legal term that means meaning “on its own motion”. 9 Justice Nasir Aslam Zahid for example consistently provided suo motu relief to illegally incarcerated youth during 1992-1994 As Chief Justice of Karachi High Court. 10 Note that the power of judicial review was created in above mentioned Marbury case though the general idea has ancient roots i.e. the courts could nullify statutes originates in England with Chief Justice Edward Coke’s 1610 opinion in Dr. Bonham’s Case, 8 Co. Rep. 107a 11 Suo motu is a Latin legal term that means meaning “on its own motion”. 12 PLD 1958 SC (Pak) 437 13 PLD 1958 SC (Pak) 437 pg. 454 14 Ibid pg. 465 15 Ibid pg. 497-498 16 PLD 1960 SC (Pak.) 295 17 PLD 1961 SC 192 18 PLD 1971 SC 677 19 Ibid Pg. 687 20 Ibid Pg. 693-694 21 Note that Although some self-regulation in the form of a code of conduct exists, for example, the Code of Conduct Signed in November 2009. See also Section 20 of the PEMRA Ordinance, 2002 and Section 15 of PEMRA Rules, 2009. However there is little check on the veracity of information provided by the media 22 1982 SCMR 549 23 See for example the case of 1990 P.Cr.L.J. 1231 D.B. KHC and the 2001 YLR 2403 [Khi]. In both of the cases the Karachi High Court observed that suo motu powers are not available to the High Court. However see the case of 2000 MLD 1055 where the Lahore High Court did take suo motu notice over death of a child who fell in the man hole. 24 It is worth noting here that on December 17, 2009 LHC Chief Justice Khawaja Sharif after suo motu proceedings into the Imanae Malik death case instructed to add section 302 to the FIR already booked against the owners and doctors of Doctors’ Hospital, the accused. In another case the suo motu notice was taken, when LHC CJ summons ‘careless’ Sargodha doctor on 11th Jan 2010 . 25 LHC stays increase in urban bus fares 26 LHC issues notice to Chief Secy, Home Secy for 26th 27 PLD 2010 Lahore 23 28 LHC fixes retail price of sugar at Rs 40 per kg 29 Bench Split on suo motu powers of high Courts Dawn [12.01.2010] 30 Justice Javed Iqbal of the Supreme Court made these observations see “… CJ has changed course of history, says Justice Javed 31 http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/letters-to-the-editor/judicial-activism-and-social-justice-110 32 See for example Judicial Activism in Pakistan by Waseem Ahmed Qureshi 33 See Dawn.com | Editorial | The exercise of suo motu 34 Ibid 35 http://www.dailytimes.com.pk/default.asp?page=201021\story_1-2-2010_pg1_6 36 See Footnote 32 37 See for example “Suo motu Exercise of Writ Jurisdiction” by Barrister Asif Saeed Khan Khosa [now Justice of the Supreme Court] PLD 1993 2 JOUR Pg 87 38 Other examples can be found in the Supreme Court. Take for instance the levy of Carbon Tax. A petition was filed challenging the said tax. The court stayed its collection which would have brough Rs. 120 Billion to the State. The government introduced the same tax with a different name. Another petition challenging the same was dismissed on technical grounds. Another interesting example is the Steel Mills case. The Supreme Court annulled the privatization of Pakistan Steel Mills. The winning bid in this case was $362 million, add the $250 million the bidder promised in court to invest and finally the loss racked up by the mill in the year 2008-2009, i.e. Rs. 22 Billion the total loss to the State coffers was approximately 60 Billion. See the observations by Faisal H. Naqvi in “The economics of Judicial Intervention”, The Friday Times dated 19.03.2010

The future post Benazir Bhutto

The tragic death of Benazir Bhutto is the darkest event – by far – in a country where bloodshed and turmoil has become a daily routine; whether it is in the Swat valley or on the crowded streets of Karachi. Ms Bhutto was buried by the mass crowd of Larkana next to her father. It was the same district where – in September 1996 – the crowd that had gathered to bury her brother, Murtaza Bhutto, pelted stones at her car forcing her to leave. (She was Prime Minister at the time). It seemed though that the people of Larkana had forgiven her as hundreds of thousands mourned her death.

Some people criticized her, not least because of the approval of her husband’s exploits, but also due to the feudal system she represented, her political opportunism and her autocratic party rule (of which she was chairperson for life). But she was loved by many. She promised to root-out religious extremism and so was the darling of the West. She persisted that she represented the poor, and lately – and most importantly – her anti – establishment and Musharaf stance gave her much support amongst the masses. Her death, on the other hand, is being increasingly attributed to the extremist (religious) zealots, by both people in Pakistan and in the West.

The truthfulness of this is unclear. However the chain-reaction that this attribution has started has made some to ask, has the widely predicted ‘clash of fundamentalism’ in Pakistan now irrevocably begun? Firstly, the definition of the involved fundamentals is in order. In simple, it is the clash between, liberalism (concerning religion) and religious conservatism (or extremism as is widely used in media). It is also between the ideas of laissez faire (as is promoted by the West) and poverty, the list goes on. The unfortunate aspect of all this is that these fundamentals are badly understood. The Bush statement, that the murder is “… cowardly act by murderous extremists …” is a telling example; if nothing comes to mind, blame it on (religious) extremists and the same applies vice versa.

Critically though, the answer lay not in what the extremists say on both sides, or the identity of the murderer or his accomplices/ masters who were involved in her death, but in us, all of us. This so called clash has – up till now – been restricted to minor incidents and occasional ruptures (Red Mosque and recently in Swat valley) but has remained largely underground. Another limiting factor has been that the huge majority – being moderates- have been uninterested and to a large extent uninvolved. The influence of the two extremes has oscillated throughout Pakistan’s history while the majority has remained in a semi-sleep. But has this changed? Have most of us changed? Again only time will tell.

No doubt than – for Pakistan – the crucial question would be, what happens now? What lies ahead? All we have heard so far is from the Western politicians, save Imran Khan who has called for boycott to election. On Thursday Bush called on Pakistan “to honour Benazir Bhutto’s memory by continuing with the democratic process for which she so bravely gave her life.” Gordon Brown, similarly, asked Musharaf to “stick to the course he has outlined to build democracy and stability in Pakistan.” He further said that “the international community is united in its outrage and determination that those who stoop to such tactics shall not prevail”. Others have been less optimistic. John McLaughlin, former acting director of the CIA, predicted that the chaos would last for weeks at least if not more. The western political pundits have also wasted no time to blather on their fantasy of a jihadi finger on a nuclear trigger.

Our politicians, on the other hand have decided not to (publically) dwell on it – probably rightly so as well. While we have already started to see the blame games, the speculations, the conspiracy theories already grappling many, I see no reason to participate in the same. Doing so would be fruitless and wasteful -for now – because it surrounds too many uncertainties. If politicians use it, it would be nothing but playing with emotions and political cheapness.

On the news of Bhutto’s death, vandalism and arson attack started. Trains have been burned and businesses destroyed. People were –understandably – outraged and so the chaos continues. Unfortunately, we act before we think. It is high time we reverse that. There is no other time for greater need for calmness, than now. It is time for flexibility and tolerance, more so by the politicians themselves than anyone else. The decision not to contest election by the Nawaz Sharif’s PML-N was probably too hasty and therefore did not help the situation. What is needed is careful reflection on the events with guarded action. I pray for the safety and betterment of everyone and Pakistan.

WELSH DEVOLUTION and the role of Legislative Committee post Government of Wales Act 2006

1. Background

The start of the Welsh Assembly was peculiar; it was a body with no formal division between the executive and the legislature and with no primary law making powers. Despite this, there was an immediate shift away from ‘strong committee system’, envisaged by the Government of Wales Act (hereinafter referred as ‘GWA’) 1998, to the cabinet model.[1] Secondly, when it came to a ‘National’ representative institution capable of making laws[2], it became painfully clear that the devolution was in reality partial.[3] A good example would be the first Orders in Council[4] which was highly restrictive in nature and granted very little substantive powers.

However, as the Richard Commission noted that it would be ‘inaccurate to think of the [1998 settlement] as an executive devolution.’[5] Nevertheless, the legislative competence has rapidly increased in the fields originally set out under A Voice for Wales.[6] R. Rawlings rightly notes that, not only the Orders in Councils awarding competence to the Assembly have become wider in their scope; they have also become more frequent.[7] These greater powers have meant that the Assembly has been able to legislate e.g. by way of ‘Assembly Orders’ in greater areas.

2. The legislative Committee under the 1998 Act

2.1. Legal Base

To review inter alia Assembly Orders, Section 58 (1) of the GWA 1998 required the creation of Legislative Committee. While drafting the 1998 Government of Wales bill, keeping in view the ‘corporate model’, it was anticipated that the Legislative Committee would act as a ‘species of internal audit’.[8]

2.2. Committee Composition

The guidance for the composition of the Committee is provided by Section 59 of the GWA 1998 and the Standing Order (hereinafter referred as ‘SO’) 11.1, which provides that there be at-least 7 and no more than 11 members. The SO also provides that none of the Assembly Cabinet members’ shall be a member of the Committee. Section 59 (2) of GWA requires that there needs to be a balance of representation, reflecting the number members of individual parties in the Assembly. The Chair of the Committee is elected by the Assembly and (s)he cannot be member of the political party in government.[9]

2.3. Responsibilities

Under Section 58 (4) of the GWA 1998, the Committee is required to consider any subordinate legislation before the Assembly.[10] The Section requires that the Committee bring to the Assembly’s attention any matter that would be of its concern.[11]

SO 11 provides the detailed responsibilities of the Committee and SO 11.7 sets out the matters that need to be considered by the Committee. For example, whether the proposed measure is within assembly’s legislative competence or makes unusual or unexpected use of power (ultra vires),[12] whether it has retrospective effect,[13] whether it has drafting defect or fails to satisfy legal requirements, [14] or has inconsistency with the English and Welsh text[15] etc. On the 12th of July 2005, the Assembly approved in Plenary two additions matters which the Committee must address when assessing a draft measure, first, whether the draft legislation is gender specific and second, if the measure is not made in both languages.

2.4. Operations

By its’ last meeting of the second committee on 20th March 2007, the Committee had reviewed in total 1513 pieces of legislation. In practice it would present its’ concerns, corrections and recommendations to the Assembly.[16] Of the recommendations, well over half were related to ‘defective drafting’ or ‘inconsistency with the English and the Welsh texts’.[17] The fact that in the eight year period, there has not been a single challenge in Court of any Assembly measure goes some way for the quality of work done by the Committee. Out of all the recommendations almost all of them had been adopted by the assembly.[18]Furthermore, in many cases, the legal advisors to the Committee were consulted at early stages of the drafting.

The working of the Committee is interesting,[19] it meet every week whenever the Assembly is in session, SO 8.22 requires that all draft be provided to committee members two days before the meetings and following the meeting the recommendations are laid before the Assembly almost always the same day. Despite the limited time if there is a need the relevant Ministers can be called in, should a problem/ confusion regarding some proposed measure arise.[20] It is also interesting to note that there is an informal co-operation that exists between the government and the committee through the respective lawyers and many disputes are settled through this backdoor channel.[21]

During our meeting with the lawyers to the Committee, on the 20th March 2007, two points were raised which are of general importance. First, the committee ensures that there is no discussion on the policy aspect of the proposed measures. Secondly, with current membership the level scrutiny that has been possible in the past will not possible in the future due the gradually increased work load. I will look at these issues in more detail in following paragraphs when looking at post-2007 approach.

3. Work of the Legislative Committee under Government of Wales Act 2006

3.1. General

We know that under the GWA the Assembly has primary law making powers and that there is formal division between the executive and the legislature. While, before the 2006 Act the Assembly was involved with all the Communication and Orders in Council giving powers to the Welsh Assembly Government, now it is quite possible that the Assembly will be left out. This situation gets compounded by the ever increasing number measure coming under executive procedure.

3.2. Proposed Operation

The Legislative Committee on 23rd May, 2006 approved a paper[22] on its future workings post-2007. As we have seen, major part of the time is taken up by the review of differences English and Welsh texts, it was suggested that the best way to produce bi-lingual legislation would be co-drafting as this will give the Committee greater time and freedom to work on other areas. However to achieve this, more drafters would need to be employed.[23]

It is also proposed that the current role of technical scrutiny be continued and committee should be free to consider the merits of the proposed measure. The proposed SO for the legislative Committee post 2007, makes this distinction very clear. Under the proposed SO 15 there are two kinds of matters, those which the Committee must consider when reviewing any measure and matters which the Committee may consider. Most of the matters that are under the must category are those carried forward from previous two committees, e.g. whether a proposed measure is intra vires and has no retrospective effect etc. The addition seems to be that the Committee is required to consider whether there has been an unjustifiable delay in the proposed measure being brought before the Assembly.

3.3. Discussion of Merits by the Committee

A novel development has been the addition of matters that the committee ‘may’ consider. Although it seems that care has been taken to ensure the Committee room does not become an arena for policy debates. For instance, it was proposed by the committee paper[24] that matters discussed will not be of policy related, but only discuss the merits. For example, whether the proposed measure is the most effective way of achieving the objective it seeks to attain. To achieve this, the Committee may consider, inter alia the impact of the measure on the Welsh Consolidation Fund, e.g. if it requires payments to be made to the Government or results in a commitment on behalf of the Assembly. Others matters that may be considered are public policy, inappropriate application of EC law, or unsatisfactory outcome relating to the proposed measure etc.[25]

It is worth highlighting that the discussion on merits will invariably require a discussion on policies. Therefore, it will be for the Chair to ensure that the debates stay on track.

It may also be suggested that even if the Committee only discusses the merits of the proposed measures, the committee should not only be in a position to invite the relevant minister (or any expert on his/ her behalf) to give evidence, but also invite independent (non-partisan) experts to give their opinions.

Further more the Committee should be in a position to review any proposed Assembly measure which will be confer extra powers to the Welsh Assembly Government. [26] This will act as an extra check. However it is possible that there are other committees that would be better positioned to scrutinize the executive.[27]

4. Conclusion

There is no formal channel of communication between the Welsh Assembly and the Westminster Parliament. This connection is important, firstly because now the Welsh Assembly Government is a separate legal body and secondly, to ensure that there is an appropriate check on the powers being conferred to the Welsh Ministers directly via Order in Councils. In order to achieve this, the legislative committee can act as the connection between the Welsh Assembly and the UK Parliament. The Committee is required to report on the powers being given directly to Welsh Minister.[28] It can bridge the apparent communication gap when it is reviewing these proposed Orders in Council.

Lastly I would like to highlight that the committee members and staff are increasingly being made to work to their limits, under the current setup. Although the meetings are held once a week, if any greater work load is added there is a risk that the quality of will be reduced. Therefore if greater technical scrutiny is to be carried out, the number of staff or members, as it is appropriate, will need to be increased.

Bibliography

Ø R. Rawlings, Delineating Wales, university of Wales Press

Ø Devolution law making and the Constitution, R. Rawlings and Robert Hazell, Imprint Academic, 2005

Ø Commission on the Powers and Electoral Arrangements of the National Assembly for Wales (The Richard Commission, 2004)

Ø K. Patchett, ‘Principle or Pragmatism? Legislating for Wales by Westminster and Whitehall’ in Hazell and Rawlings (2005 Imprint-Academic)

Ø Alan Trench, The Dynamics of Devolution, 2005 Imprint-Academic

Reports and Articles

Ø Legislative Committee, Second Assembly: Third Annual Report 2005-2006

Ø Legislative Committee, Second Assembly: Fourth Annual Report 2006-2007

Ø David Lambert, The Government of Wales Act- an Act for Laws to be Ministered in Wales in like for as it is in this Realm? 30 C. L. R. 60

Websites

Ø http://www.assemblywales.org/bus-home/bus-committees.htm

Ø http://www.bbc.co.uk/wales/history/sites/language/pages/devolution.shtml

Ø http://www.answers.com/topic/government-of-wales-act-1998

Ø http://new.wales.gov.uk/?lang=en

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[1] See M Laffin and A. Thomas, ‘Designing the National Assembly for Wales’ (2000) 53 Parliamentary Affairs 557
[2] See for example T. Jones and J. Williams, Wales as a Jurisdiction, [2004] Public Law 78
[3] R. Rawlings, Law making in a Victual Parliament: The Welsh Experience, Chapter 3 in, Devolution law making and the Constitution, Imprint Academic, 2005 page 72
[4] The National Assembly for Wales (Transfer of Functions) Order 1999 (S. I. 1999/672)
[5] Richard Report, Chapter 14, Para 7
[6] Ibid, Chapter 9
[7] See supra note 3
[8] Memorandum from the Leader of the House, 27th Report of the Joint Committee on Statutory Instruments, HC 33 of 1997-8, at xxvii
[9] GWA, section 59 (3)
[10] GWA 58(4) a
[11] GWA 58(4) b
[12] SO 11.7 (i)
[13] Ibid (ii)
[14] Ibid (iii)
[15] Ibid (vi)
[16] Legislative Committee, Second Assembly: Third Annual Report 2005-2006
[17] Ibid
[18] Legislative Committee, Second Assembly: Third Annual Report 2005-2006, page 8
[19] Though the work itself as, R. Rawlings said, is ‘exceptionally tedious’, standing for the grimmer realities of the life of the Assembly as a legislature!
[20] SO 11.6
[21] R. Rawlings, Law making in a Victual Parliament: The Welsh Experience, Chapter 3 in, Devolution law making and the Constitution, Imprint Academic, 2005 page 87
[22] Scope and remit of the legislative Committee post-2007. Although the complete text was not availably to this writing, the final recommendations were available in the annual report of the legislative committee2005-06.
[23] Ibid
[24] Ibid
[25] Proposed SO 15.3
[26] Ibid
[27] E.g. Committee for the Scrutiny of the First Minister.
[28] see proposed SO 15.6 (ii)