Thursday, July 23, 2009

Pakistani Supreme Court Reviewing the Last Ten Years

Although it hasn't seemed to have caught much attention in India, the central news story in Pakistan the last few days is that a 14-judge bench of their Supreme Court is hearing a case that now seems to be considering a whole range of alleged legal wrongs that happened over the last 10 years. Just yesterday Pervez Musharraf was called to either appear in person in front of the Court or have legal counsel do so to answer legal allegations that took place during his leadership - this is the first time a former military ruler of Pakistan has been asked to account for his actions before a Pakistani court. The case has now taken on a whole range of issues, as the above Dawn article describes:

"Three days of proceedings on a petition filed by the Sindh High Court Bar Association against non-confirmation of two SHC judges — Justice Zafar Ahmed Khan Sherwani and Justice Abdul Rasheed Kalwar — evoked apex court’s interest in looking into the entire gambit of issues, from revisiting the Tikka Iqbal Mohammad case of validating the Nov 3 emergency to deciding the fate of PCO judges to the amendments made to the Constitution by inserting Article 270AAA and other effects of actions taken during the emergency."

Although I am happy to see the Pakistani judiciary seriously looking at a number of these perceived legal wrongs, I do worry that they might be taking on too much and some of these issues deserve to be handled separately. Cases like Tikka Iqbal Mohammad (which was decided by 13 judges) would require a bench of the current size to be over-ruled and so there is an understandable temptation to try to lump all these "high-bench issues" together when you have such a large bench already together.

This though points to one of the potential downsides of having a system in which you need a larger bench to overrule a past decision. In India it is unlikely a bench will go past 13 judges any time soon and it is arguable if this is really hampering the system. In contrast, in Pakistan you have had much more political (and judicial) turmoil over the last few decades and so larger and larger benches have had to be called upon in rather quick secession (in fact, I wonder why they chose 14 instead of 15 for this latest bench). You have to wonder where this all stops and when the bench size just gets too unwieldy. I'm sure anyone who has had to study Kesavananda Bharati would feel instant sympathy with the next generation of Pakistani law students at the prospect that they may have to end up reading potentially many different lengthy judgments on not just one, but a range of legal issues that may result from this single case.
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