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| April 29, 2006 | Saturday | Rabi-ul-Awwal 30, 1427 |
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Another blow to Lanka peace
Reviving local cinema
Do we need more laws and courts?
THE federal government has yet again embarked on a reforming spree. As usual, the target is the judiciary. The government proposes to create a high court at Islamabad. The other bill published by Government is the High Courts (Practice and Procedure) Act, 2006. Under this law, the government proposes to create three divisions, namely civic, commercial and criminal in each high court.
EVEN though basically of a technical nature, the four confidence-building measures, including the finalisation of “ground rules” along the international border, agreed to by Pakistan and India on Thursday, constitute a step forward in the on-going normalisation process. The CBMs concern the armies on both sides and relate to such technicalities as quarterly flag meetings between sector commanders in agreed sectors, a ban on construction of new defence works along the Line of Control and a speedy repatriation of those who mistakenly cross over to the other side. The last one concerns innocent people, especially farmers, who mistakenly cross the LoC. Normally, such people are arrested and kept in prison for long before they are repatriated. Thursday’s agreement should help alleviate this source of unnecessary hardship for many on both sides.
Yet, no progress was made on the Kashmir question, especially in the light of the many suggestions made by Pakistan for a solution of the nearly six-decade-old dispute. On Islamabad’s demilitarisation suggestion, the Indian delegate’s response at the joint press conference seemed to indicate lack of flexibility in New Delhi’s stance. Asked about his country’s response to Pakistan’s proposal for demilitarisation, reduction of troops, and the pull-out of heavy guns, because they constitute an offensive rather than a defensive approach, the Indian delegate said “the deployment of forces in any part of India is our sovereign right and taken in conjunction with the security situation”. What the Indian delegation chief was saying was that Kashmir was part of India. If India were to stick to this position, there will be little chance of finding a solution to the dispute that has been the cause of at least two wars in the past. It also means a continuation of the status quo in which the people of Kashmir and India’s own occupation forces are suffering casualties. In fact, the Indian army has suffered more casualties in the Kashmir valley since the beginning of the insurgency in 1989 than it did in the 1965 or 1971 wars, while the people of Kashmir have been victims of gross human rights violations on a scale that has drawn condemnation from world rights bodies.
The fact is that the spirit of friendship generated by so many confidence-building measures could fizzle out if India fails to satisfy Pakistan on a number of developments that have caused concern in Islamabad. These include continued deployment of 90 per cent of India’s armed formations in an offensive manner that target Pakistan, the nuclear deal with America, which will enable New Delhi to speed up and expand its nuclear weapons programme, and the ABM systems which India is purchasing from the US, Russia and Israel. Far from serving the cause of non-proliferation, India’s ABM deals will force Islamabad to strengthen its own missile programmes and accelerate an arms race in South Asia. Also, there is no progress on Pakistan’s no-war proposal. Pakistani and Indian leaders — from Nehru to Ziaul Haq — have been making no-war proposals but without ever clinching a deal. It acquired a domestic significance when Bhutto threatened to unveil “Tashkent secrets” which ultimately turned out to be Ayub’s no-war proposal to Shastri without a Kashmir solution. At present, the priority for the two sides should be to continue to push the detente forward with specific steps taken by India to satisfy Pakistan that the former is serious about a solution to the Kashmir dispute.
FOLLOWING Tuesday’s suicide attack on the army headquarters in Colombo and retaliatory air strikes by the military on Tamil targets in the north-east of the island, Sri Lanka’s fragile truce is once again on the verge of collapse. Fears of the country sliding back into civil war have been growing, especially since the Tamil Tigers told the Norwegian truce monitors that they would not participate in peace talks scheduled to be held in Geneva this month. Hostilities between the rebels and government forces had increased after the election of President Mahinda Rajapakse, considered to be a hardliner, in November last year. But soon after his election, the rebels themselves had provided a ray of hope for salvaging the peace process when they participated in peace talks early this year and pledged, along with the government, to uphold the ceasefire of 2002. Tuesday’s attack which killed eight people and seriously wounded the army chief is a clear indication of the direction that the Tigers want to take towards their goal of self-rule for the Tamil community in the north and north-east of the island.
If the rebels do not seem to care about the effect that protracted hostilities will have on the people they claim to represent, the government should at least show restraint and not follow a course of vengeance that can only make things worse. Thousands of people have fled their homes following the Sri Lankan military’s air blitz and this will only add to the feeling of alienation which the Tamils are currently experiencing. There is no doubt that the Tigers must not be allowed to get away with attacking government installations and killing innocent people in the process. They must be dealt with firmly but not in a manner that affects ordinary citizens as this will only alienate the minority community still further. If the government wants to strengthen its hand against the Tigers and to gain the goodwill of ordinary Tamils, it will have to stop harassing the latter on account of their ethnic origins.
WITH the screening of the classic Indian film Mughal-i-Azam in Lahore earlier this week and the premiere of Taj Mahal in Lahore and Karachi, is there a possibility that the dying Pakistani cinema will feel a strong impulse for revival or will it be unable to withstand the competitions from Indian films if more of them are released here? Many actors, producers and distributors support the showing of Indian films, saying that this is exactly the boost the local industry needs to revive itself and improve the quality of its productions. There is also much talk about joint production between India and Pakistan — which will also benefit local cinema and talent. From an economic point of view, it makes sense as cinema houses — whose numbers have dwindled over the past few years whereas sales of pirated videos and DVDs have skyrocketed — stand to benefit once people return to watching films on the big screen. This will give a boost to the local industry’s confidence and ability to make quality films. But this can happen only if the film industry has government support, which for decades has been lacking and has resulted in a steady decline in film-making.
Film production needs to be recognised as an industry. This will enable film-makers to get loans from banks in order to make quality pictures. The government should also grant certain concessions to facilitate the import of latest equipment that is vital for producing better films. It should help set up training centres and schools to hone local talent which in turn will facilitate the production of good films. Finally, people should be allowed the chance to watch movies, foreign and local, as avenues of entertainment in the country are few and far between. An element of competition combined with incentives will doubtless act as a spur for the local industry to come alive and produce films that are good both in content and presentation.
Insofar as creating a high court at Islamabad is concerned, the statement of object of the law provides that in view of the importance of Islamabad, its growing population, foreign investment and other administrative reasons, it is expedient that Islamabad capital territory be declared a province which should have a separate high court. The federal high court shall have a chief justice and the number of other judges will be notified. At present the Rawalpindi Bench of the Lahore High Court exercises jurisdiction of or high court with respect to Islamabad Capital Territory.
The wisdom of establishing a new high court at Islamabad is not self-evident. In the presence of a huge building of the Lahore High Court, Rawalpindi Bench, situated at a very short distance from Islamabad and the permanent availability of the learned judges of Lahore High Court there, the case for creating a new high court at Islamabad is hardly convincing. Although the federal law minister has stated that no constitutional amendment is required for establishing a federal high court, Article 175 of the Constitution of Pakistan, 1973, categorically provides that there shall be a high court for each province and such other courts as may be established by law. Article 198 of the Constitution provides for Benches of four high courts at the principal seat of the provinces as well as at circuits.
The Islamabad Capital Territory is not a province. Article 1 of the Constitution provides for four provinces while Islamabad is the federal capital. Although by way of a legal fiction effected through a deeming clause in law, Islamabad Capital Territory may be treated as a province or part of any other province. However, it needs to be carefully examined as to whether such legal fiction can be stretched to nullify or distort a clear constitutional provision. The government needs to carefully examine the constitutionality of its decision.
The second bill — the High Courts (Practice and Procedure) Act, 2006 — proposes to create three divisions in each high court, namely, civil, commercial and criminal. Senior judges will preside over these divisions. Under the proposed law, a commercial division will hear cases arising out of transactions of trade and commerce, including foreign investment, negotiable instruments, export or import of goods, transportation of goods by land, sea, air or pipeline, exploitation of oil and gas or other natural resources, insurance, reinsurance, banking and financial services, operations of markets and exchanges, construction of ships, business agencies and companies.
It provides that the judges of the commercial division will also encourage parties to resolve issues through alternative methods like arbitration, mediation and conciliation. Hearing of commercial disputes will be on a day-to-day basis and will continue till completion.
There is no doubt that our judicial system is not functioning ideally. Chronic delays, procedural pitfalls, expense, multiple appeals, lack of confidence in the impartiality and independence of the judiciary, particularly its lower ties, deter litigants from seeking resolution of their disputes through normal judicial process.
The real issue is not whether our legal system needs improvement but that whether more laws, such as the proposed bills, is an appropriate response to the problems concerned. What we need to reform is not our laws but our government. We have more than adequate laws covering all the fields. What is required is their effective implementation by the government. Much of the litigation occurs because of non-observance or distortion of laws by the functionaries of the government themselves. There will of course be new areas which will require new legislation. That apart, we need to put our ordinance/law making zeal on a moratorium.
The government is one of the biggest litigants in the country. Much of the workload in the high courts as well as the Supreme Court emanates from arbitrary exercise of power by public servants. Much of our litigation would be reduced if the public servants acted impartially and in accordance with the law in their dealings with the public and resolving private disputes which aggrieved parties bring before them for settlement.
The High Court (Practice and Procedure) Act, 2006 is an unnecessary piece of legislation which has pretensions of reform without much potential for improving the court’s work or alleviating the plight of litigants. Take the example of Sindh High Court. It already has special division benches presided over by senior judges of the high court which deal with specialised subjects such as revenue, banking, criminal and appellate cases.
The wisdom behind the proposed new law is difficult to understand. The provision of the bill, which stipulates that commercial cases would proceed on a day-to-day basis till a decision is reached, is meaningless and has been tried in different other laws without any meaningful results. Although the reason for delay is not the absence of statutory deadlines in laws, yet the government continues to insist on adding such inconsequential provisions in laws.
Last year the government had proposed a legislation to establish federal commercial courts outside high courts. The proposal was not only unconstitutional but was contrary to the independence of the judiciary. It was fiercely opposed by the legal fraternity and had to be shelved. Yet the government has to demonstrate its reforming zeal from time to time. The two proposed laws under discussion are meant for the consumption of world opinion and not for bringing any substantive change.
While on the one hand the government is bent upon enacting more laws carrying a semblance of reform, it has taken years to fill in the vacant positions of judges in the Sindh High Court. For a long period, the Sindh High Court was working with only 21 judges against a sanctioned strength of 28. Of the available 21 Judges, 16 were working at Karachi while five were sitting at benches outside Karachi. Then after long delays eight additional judges were appointed. One can well imagine the impact of such a situation on litigants. Two Judges are now to retire before the end of the year.
Yet, the government is least bothered to promptly fill in the existing vacancies in the court. Indeed, the sanctioned strength of 28 for the entire province of Sindh is inadequate and needs to be enhanced soon. It goes to the credit of the bench as well as the Bar that in spite of the acute shortage of judges, the rate of disposal of cases has been remarkably well. What we really need is not legislation providing for specialised benches of high courts where such division of work already exists but more judges to cope with the excessive load of work.
The government’s efforts to reform the judicial system seems hollow in view of the fact that the federal government has even failed to appoint law officers who represent the federal government/bodies in the courts. Sindh has four sanctioned posts for deputy attorney-general, three standing counsels and one federal counsel. After the elevation of three deputy attorney-generals as additional judges of high court in October 2005, there is no deputy attorney-general at present and there are only two standing counsels and one federal counsel.
The government has not been able to appoint a single deputy attorney-general during last six months. Dozens of cases involving federal government/agencies are fixed in court for proceeding every day. Yet most of the cases have to be adjourned merely because there are insufficient law officers to represent the government. Even when the overworked law officers appear in court, they are handicapped by non-cooperation and lack of response from government departments. Month and months lapse and yet even simple comments are not filed by the Government departments.
Dozens of cases are fixed in the high court every Monday for passing ex-parte orders against the government. The few law officers that are there are seen requesting the courts to grant more time to file comments on behalf of the government departments. The judges express displeasure but are helpless. The degree of careless abandon demonstrated by the departments is absolutely astonishing. Yet it happens every day.
The government has also failed to enact a proper legislation on contempt. The Contempt of Court Ordinance, 2004 which it enacted had lapsed while causing the repeal of the Contempt of Court Act, 1976. Now there is no contempt law at the moment. A bill to this effect has been pending with parliament for years without any progress.
The government’s apathy does not end there. The Central Board of Revenue, which is the single largest litigant among the federal bodies, has a tale of its own. Despite media blitzkrieg launched by its reformers, its performance in the courts has been mind-boggling. The inefficiency and neglect demonstrated by its officers is a source of misery for all those hapless people who deal with them. But their arbitrariness does not end with their callous public dealings.
Recently, hundreds of appeals filed on behalf of the Central Board of Revenue by its different collectors involving billions of rupees have been dismissed on the sole ground that the collectors concerned did not even bother to sign the memo of appeals filed in their behalf in the high court.
Instead of visiting the high court like other litigants, they deputed incompetent officers to sign and present these appeals, with the result that all these appeals have been dismissed on account of that deficiency alone.