Authority without Responsibility

When Chief Justice Saqib Nisar accompanied by two colleagues went on an inspection tour of Lahore's Mayo Hospital many eyebrows were raised; it seemed far beyond judicial purview. Not so though considering what they found: missing from the city's oldest and biggest hospital were such basic facilities as ventilators and clean drinking water. Defending the visit, the CJ indicated his intention to take similar notice of other medical facilities in government-run hospitals of Punjab and other provinces.
During the year just ending, the apex court has taken as many as 34 suo motu notices on a wide range of issues, including recovery of unidentified bodies from collective graves in Balochistan; lynching of Mishal Khan on a false blasphemy allegation; gang rape of a girl in Multan on the orders of a jirga; killing of 20 young people in Turbat; deteriorating condition of the Katas Raj temple in Chakwal district and drying of its water pond due to illegal industrial activity; 'vani' of a minor girl in Jacobabad; removal of a poor man's kidney at a private hospital in Islamabad; and unjustified fee increases by private schools and colleges. That says a lot about the quality of governance in this country. No one could have any objection to any of these cases given the gravity of crimes involved. But there are quite a few critics of judicial activism in other cases concerning public well-being.
Among the various public interest issues the apex court has taken up is unchecked water pollution, the main cause of hepatitis spreading all over the country in epidemic proportions. Putting Punjab on notice, a four-member bench headed by the CJ has being hearing the case of polluted water supply in Sindh, especially in Karachi, and the role of the 'tanker mafia' in it. As the court noted, contaminated water is first allowed to be discharged into rivers and lakes and then provided to the people for consumption. It may be recalled that a while ago, the then corps commander Karachi had also raised questions about the hold of the 'tanker mafia' over the city's water supply, to which the ruling party leaders had reacted angrily, contending it was not for him to poke his nose in civilian affairs. Right, but then why not fix the problem? It remains unaddressed to date. Notably, when recently summoned by the court in this case, all Chief Minister Syed Murad Ali Shah could say to justify his position was to quote some statistics from Punjab to try and prove the situation there was not any better. That of course is of little help to those living in Sindh. The court has now ordered the Sindh government to resolve the problem before the next general elections, ie, within the next few months.
The CJ also raised another important issue, ordering the government to provide information as to how many medical colleges in the province were attached to 500-bed hospitals (a condition necessary for accreditation by the Pakistan Medical and Dental Council) and if those hospitals were associated with the PMDC. This is a major scandal in medical education. As reported by the media, a number of private medical colleges in Sindh as well as Punjab have obtained recognition from the PMDC without meeting the required criteria. That they have achieved on the basis of political connections, of course. It is not difficult to imagine the quality of doctors they produce. It is a criminal enterprise that must be stopped in its tracks.
Those getting upset over increasing judicial activism rely on their own interpretation of democratic principles and the Constitution to argue that it amounts to seizing the power of the executive branch and its various departments and agencies. There are several other sides to this argument. First, democracy is not just about winning elections, but protecting and promoting the rights of all citizens. With power comes responsibility towards the people. Second, it is a system of checks and balances. Third, the court draws legitimacy for its activism from Article 184 (3) of the Constitution that says without prejudice to the provision of Article 199 (pertaining to the jurisdiction of high courts) the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of the fundamental rights is involved, have the power to make an order. What can be more important than providing clean drinking water and decent health care to the people? Fourth, judicial activism is a well-established trend in other developing countries as well. In India courts have long been taking suo motu cognizance of public interest issues.
Regrettably, those who profess faith in democratic principles get active only when matters go wrong for the rulers personally or they look bad in the public eye. The Constitution not only lays out principles according to which the state and its institutions are to be governed but also fundamental rights of the people. Among other things, it stipulates free and compulsory education for all children between the ages of five to 16 years. At present as many as 20.5 million children are out of school, and a majority of those counted as literate can only write their names. That and a lot of wrongs in the way the system is being run should also bother our democrats and constitutionalists. In trying to right some of the wrongs the Supreme Court is also spotlighting the areas that are in crying need for attention. All the power to it.
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