One of the most unique aspects of the apex court of our country is the unpredictable nature of its judgments; at times they are revolutionary, at times completely mind-boggling and sometimes, quite disturbingly irrational. The recent order dated 18.05.2020, passed by the honourable Supreme Court concerning three issues, namely the reopening of shopping malls, the disproportionate amount of funds allocated to combat COVID-19 and the distinction between weekdays and weekends, has not only attracted criticism but also dangerously exposed the masses to coronavirus.
It is unfortunate that Pakistan has time and again been a victim of diffused separation of powers and it is ironic that the judiciary has played an active role in this regard. The Supreme Court has entered a tenure of exercising suo moto powers regularly under Article 184(3) of the Constitution and this legacy of judicial activism has been welcomed wholeheartedly while holding politicians and public servants accountable. However, are we ready to accept decisions based on the collective wisdom of an unelected body lacking the requisite expertise for combating the spread of an infectious disease? During this period of an international health crisis when the world is uniting in order to find a possible cure or save the maximum number of lives by imposing strict lock-downs, the institutions in Pakistan remain an uncoordinated mess. Was it not enough that the federal and provincial governments had already been competing over who had autonomy over what post Eighteenth Amendment to the Constitution that the judiciary also had to step in with a completely different approach regarding its jurisdiction?
First and foremost, any decision regarding a lock-down policy falls under the domain of the provincial executive and such decision must be taken after due consideration of opinions of medical and health experts. The definition of a pandemic authorized by the World Health Organization (WHO) is “the global outbreak of a disease”. Pakistan has 43,966 confirmed cases of COVID-19 as of today and over 900 deaths so far, and by the grace of our reckless governance we have also made it to the top 20 countries most affected by the coronavirus. Yet, our judiciary is of the view that “…there are other serious ailments prevailing in the country, from which people are dying daily and those ailments are not being catered and the Coronavirus (COVID-19), which apparently is not a pandemic in Pakistan, is swallowing so huge money…” One has to appreciate that this single order, which will serve as precedent, will allow superior courts to interfere in the nitty-gritty of fund allocations by different government departments.
Secondly, it can be argued that the Supreme Court has not directed for shopping malls to be reopened and has merely asked the provincial government in Sindh (where they remain closed) to apply to the Ministry of National Health Services, Regulation and Coordination (NHSRC) and open shopping malls should the NHSRC so decide. Even though the Sindh government asked for more time to deliberate on the reopening of shopping malls depending on the situation, the Supreme Court reflecting haste directed the Sindh government to “apply to the NHSRC today” and hoped that the “NHSRC shall give their decision today“. Moreover, pressurizing a provincial government to follow the decision of the NHSRC is undoubtedly against the essence of the Eighteenth Amendment.
The government’s decision to reopen small and medium enterprises (SMEs) in compliance with standard operating procedures (SOPs) was justifiable to a degree, keeping in mind the hardships of daily wage workers who make up a significant portion of the society. Operational timings and days of the week were regulated under these SOPs. However, according to the apex court, “…it is for the convenience of the human beings that the days have been given names, otherwise there is no distinction between others days of the week from Saturday and Sunday.” This means that any chance of reducing exposure to coronavirus on the weekends has been declared discriminatory under Article 4, 18 and 25 of the Constitution. The Supreme Court has also shown considerable sympathy towards private entrepreneurs who “lose faith in the system” and move abroad if the government interferes with their operations. The said remark seems to have been made without considering that the economic crisis caused due to coronavirus has not been limited to Pakistan but has had global effect on small enterprises as well as multinationals. It is also difficult to reconcile what constitutes ‘discriminatory’ for retailers who have outlets in malls and have also simultaneously continued with online sales, as compared to vendors in markets who have had minimal to zero cash-flow. There is no doubt that financial loss to small enterprises can be intense, but can the loss of business ever be graver than the loss of life?
In a recent notification issued by the Pakistan Bar Council (PBC) dated 19.05.2020, the PBC has stated that in the spirit of the Supreme Court’s order, it is desirable to resume normal functioning of the courts as well. One must ponder over whether shops, malls and markets can also be interpreted to include courts and tribunals. This is just one consequence of the vague terminology used in the Supreme Court’s order – much more will presumably follow. The Supreme Court has also not mentioned any statistics or factors on which its recent order has been based, leaving us in yet another confused arena of precedents.
The decision is alarming on so many levels as it reflects a misapplication of the judicial mind. It also shows how casual our approach towards human life is and the degree of recklessness we can opt for in order to impose the supremacy of a single institution. The question that remains is whether the judiciary will be held accountable for this decision if it causes multi-fold increase in coronavirus affected patients or whether it will simply blame the government for incompetence.
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