Articles of the Day

15-10-2023
‘Internal’ independence
Reema Omer Published Dawn October 15, 2023
The writer is a lawyer

ON Oct 11, the Supreme Court by a 10-5 majority upheld the constitutionality of
provisions related to bench formation and case allocation in the Supreme Court
(Practice and Procedure) Act, 2023. Parliament’s enactment of a law distributing to
a committee of judges what were earlier the chief justice of Pakistan’s (CJP) sole
discretionary powers, and the Supreme Court upholding its constitutional validity,
are both welcome and necessary first steps in recognising the ‘internal’ aspect of
the independence of the judiciary.

A brief history of the evolution of the independence of the judiciary can help explain
the meaning of ‘internal’ judicial independence and its significance.

In essence, judicial independence means judges should be free to perform their

duties in accordance with the law without any improper influence. This is important
as only an independent judiciary can safeguard the rule of law, access to justice, and
more generally, the fundamental rights of the people.

In Pakistan, like in many other jurisdictions, independence of the judiciary has

almost entirely been seen as the institutional and functional separation of the
judiciary from other branches of the state in matters such as appointments,
accountability, and court administration.
However, as judiciaries in many parts of the world have become more institutionally
independent with greater powers of self-governance — as has been happening in
Pakistan as well — there are growing concerns about the ‘internal’ dimension of
judicial independence, which seeks to protect individual judges from interference
or improper influences from within the judiciary.

The European Court of Human Rights, for example, in a number of judgements since
2009, has recognised “judicial independence demands that individual judges be free
not only from undue influences outside the judiciary, but also from within”. It has
held internal judicial independence requires that judges are “free from directives or
pressures from the fellow judges or those who have administrative responsibilities
in the court such as the president of the court or the president of a division in the
court”.

One such example of ‘internal’ independence is ensuring court presidents or chief

justices do not have arbitrary, unstructured powers to constitute benches and
assign cases to individual judges. The UN Special Rapporteur on the Independence
of Judges and Lawyers has said case allocation “at the discretion of the court
chairperson may lead to a system where more sensitive cases are allocated to
specific judges to the exclusion of others” and has argued for a mechanism that
“protects judges from interference from within the judiciary”, including through
legislation.

A number of constitutions, particularly in Europe, recognise the right to a ‘lawful’ or

‘natural’ judge. This right is now also seen as a safeguard against deprivation of the
‘lawful judge’ from within the court administration. In countries such as Germany,
therefore, a ‘management group’ consisting of the court president and a number of
judges decides how cases are allocated on the basis of predetermined ‘management
plans’.
These examples show allocation of cases to individual judges or benches is not solely
a matter of court administration, but has serious implications for ‘internal’ judicial
independence, and consequently, for the rule of law, access to justice, and the right
to a fair trial. Parliaments, therefore, are not just competent to provide a remedy in
such cases, as they have done in a number of jurisdictions, but have a duty to do so.

This is true for Pakistan as well. In recent years, we have seen how the CJP’s arbitrary
power to allocate cases has raised concerns of illegitimate influences on the
functioning of the judiciary and case outcomes. Chief justices have grossly misused
their powers by assigning politically significant cases to a handful of judges to the
exclusion of others, based on no clear criteria, creating a hierarchy in Supreme Court
judges. Cases have been taken from particular judges and allocated to others in the
middle of the proceedings. And while certain petitions have been heard promptly,
others have remained pending for years.

Yet, surprisingly, a number of judges, lawyers, and other commentators still

consider bench formation and case allocation an “administrative matter”, and find
legislation distributing these powers to a committee of the CJP and two senior-most
judges outside parliament’s competence and an assault on the independence of the
judiciary.

How the committee constituted under the law works in practice would demonstrate
how far issues related to bench formation and case allocation have been addressed,
but at least this much is clear that the CJP giving up his power as the ‘master of the
roster’ and sharing it with other Supreme Court judges strengthens ‘internal’ judicial
independence.

It is also heartening to see that even outside this judgement, a number of Supreme
Court judges have raised the ‘internal’ aspect of the judiciary’s independence in
their dissenting and separate opinions, suggesting that judges are now less
concerned about maintaining the illusion of all being well in the court and are more
willing to address issues afflicting the Supreme Court’s functioning for many years.

That said, it remains to be seen whether there has indeed been a paradigm shift in
how the Supreme Court (and perhaps the high courts too) understand the
independence of the judiciary, as many other issues continue to hamper ‘internal’
independence and need reform. These include opacity in the judicial appointments
process and the CJP’s power of ‘initiation’, which makes him the sole authority that
can recommend names of candidates that the Judicial Commission can consider for
appointment to the superior courts. Similarly, urgent reform of the judicial
accountability system is also required, including through legislative as well as
procedural changes to the Supreme Judicial Council, to safeguard both ‘internal’
judicial independence and the independence of individual judges.

Ideally, any judicial and legislative attempts to address these issues — as well as the
public response to such efforts — should be based on a holistic, contemporary
understanding of judicial independence that also includes its ‘internal’ aspect,
instead of an outdated, knee-jerk view that is enamoured by a CJP as the
paterfamilias and equates independence with complete insulation of the judiciary.

The writer is a lawyer.

Dirty energy
Dawn Editorial Published October 15, 2023
SINDH Industry Minister Younus Dagha’s recent call for the ‘aggressive’ use of coal
in the country’s energy mix — given its low cost — is problematic on several counts.
Although affordability is an important consideration for a financially strapped
country like Pakistan, reliance on coal would be worrisome given the environmental
implications. Coal is considered the dirtiest of all fossil fuels. When burned, it
produces sulphuric acid and nitric acid which cause acid rain and other forms of
pollution. Coal also produces the least energy for every CO2 molecule it emits into
the atmosphere, thus enhancing the greenhouse effect and leading to global
warming. Even if we consider Mr Dagha’s argument that after the Ukraine war,
Europe, China and the US increased their coal dependence, comparing Pakistan’s
carbon footprint to larger nations can be a misleading premise. Just because our
footprint is ‘miniscule’ in comparison, it shouldn’t give us a free pass to increase it
further. And while it is easy to point out that growing economies such as India and
China are heavy coal users, it must also be considered they are actively exploring
and investing in renewable energy to shed their reliance on coal. Pakistan should
focus on harnessing the vast potential of its own renewable resources.

It is heartening to note that according to the 10-year Indicative Generation Capacity

Expansion Plan, the country aims to produce 60pc of electricity through non-fossil
fuels by 2030. However, maximising the use of coal for the remaining 40pc would
nullify these very efforts. Given our potential in hydel, wind and solar energy — with
hydel already contributing 37.6pc to the energy mix according to August data —
these indigenous, renewable sources should be further explored and optimised.
While coal might offer a temporary economic respite, the environmental
repercussions are far-reaching and long-term. Pakistan must carve out an energy
strategy that not only caters to its immediate needs but also ensures a green and
sustainable future. Published in Dawn, October 15th, 2023
Fuelling economic growth through IT
Mohsin Saleem Ullah The Express Tribune October 15, 2023
The writer holds an llm from uc berkeley and is a practising lawyer and columnist he
can be reached at mohsin saleemullah berkeley edu or twitter mohsinsaleemu

Economies worldwide rely heavily on tax collections, which serve as a fundamental

component to generate revenue for the government and finance social services
projects to support impoverished segments of society. Like any other developing
economy, Pakistan collects less than 15% of its GDP in taxes as compared to 40%
collected in developed nations. Due to the low collection of taxes and the
skyrocketing cost of funding social infrastructure and public welfare projects,
Pakistan always falls short of money, leading the country to turn to international
financial institutions (IFIs) for bailout packages or begging from economically sound
friends.

Throughout the preceding years, IFIs such World Bank, Asian Development Bank and
IMF have been providing technical assistance to FBR, and revenue administration at
the federal and provincial levels to chalk out plans for addressing Pakistan’s
unresolved tax issues. Through the IMF 2019-2023 programme, an increase in tax
revenue collection by 4-5% of GDP through personal and corporate income tax
reforms was expected. However, by the end of the programme, the country’s tax
collection as a ratio to GDP declined. Regrettably, despite the IFIs-funded tax reform
projects, the results have been unsatisfactory due to the theoretical solutions that
often don’t work in our scenarios. For instance, the World Bank once suggested a
delusional solution of voluntary tax compliance, which perhaps could work in a
developed economy, but is hard to implement in a country where tax evaders can
easily dodge tax audits, avoid enforcement and skip strict penal actions.
Pakistan needs tailored tax solutions that address the underlying issues by defining
the vision of our tax policy, and ensuring its full compliance in light of the principle
of equity so that all equal persons are taxed equally, and all unequal should be taxed
unequally. Regrettably, in this country, this principle has been misinterpreted, as
the rich pay the least, whereas the salaried class and a few businesses carry the tax
burden of the whole country.
Amid this economic turndown, there is one sector that can potentially help the
country stabilise its dwindling economy and escape future economic woes — the IT
sector. Despite the government’s awful tax policies, Pakistan’s IT exports have
reached a mere $2.6 billion, as per a recent report in this newspaper. The absence
of a business-friendly climate for the tech ecosystem, along with complex red
bureaucratic tape, makes investors avoid such markets, especially in the presence
of regional countries like India, the Philippines, and even Bangladesh which
incentivise tech businesses by providing income tax exemption for the first five
years.
Our tax policy goal is to collect maximum revenue through high tax rates without
even broadening the tax base, which brings tax collection and IT growth at odds with
each other. For FY24, the government slashed taxes on IT firms to help boost their
growth and made the tech freelancers income tax-free. But people associated with
the IT sector are still paying up to 35% tax on their salaries. This translates to the
disparity between freelancers and tech employees, which poses a major challenge
for the IT sector to retain talent.

Tech Giants like DevsInc — a Pakistani software company with an employee base of
over 1,500 and a presence in multiple countries with an employee retention rate of
94% — is deeply concerned about the issue of high taxes on salaried tech
employees. If the government does not consider slashing exorbitant taxes on IT
employees, it may hamper the industrial growth. On the contrary, lower taxes will
help retain skilled workers and flourish local IT industry, thereby helping the
economy recover and rebound.
Our IT industry has the potential to transform our economy and push our exports to
a record high. The government should come up with a well-articulated tax policy
that overcomes the internal challenges and supports growth in the tech sector to
help the country’s economy.
Published in The Express Tribune, October 15th, 2023.
Imbalanced hydrological cycle
Editorial Published in The Express Tribune, October 15 th, 2023.
Pakistan ranks among some of the most water-stressed countries in the world.
Despite progress in water accessibility, nearly 21 million Pakistanis still do not have
access to clean and potable water. Pakistan is now among the nations impacted by
“an out of balance” hydrological cycle due to climate change in 2022. The World
Meteorological Organisation (WMO) called for a fundamental policy shift to
improve water monitoring.
Last year, several parts of the country endured intense droughts and heat waves.
The heat waves triggered glacier melts, which were followed by intense rainfall and
flooding during the monsoon season. As we already observed, these unprecedented
weather events have brought about significant challenges for both the local
population and the nation as a whole. International organisations cautioned
Pakistan about its susceptibility to climate-related disasters. However, the country
still falls short in terms of research and monitoring, which are essential for making
decisions based on evidence and taking timely actions. Regrettably, Pakistani
policymakers appear to have gleaned little from the extensive devastation of the
previous year, as they have not managed to formulate and implement suitable
policy frameworks for addressing climate-related concerns.
With climate change exacerbating imbalances in the hydrological cycle and rising
water shortages across Pakistan, there is no time to waste. WMO’s warnings should
serve as a wake-up call for Pakistani policymakers and other stakeholders working
on climate change. Policymakers need to take concrete measures to improve water
monitoring and management to safeguard our water resources and alleviate the
risks of water-related disasters. Pakistani authorities should seek the assistance of
global organisations to mitigate these challenges. The time for proactive global
cooperation and data-driven decision-making in water management is now before
the hydrological cycle spins further out of balance.

Published in The Express Tribune, October 15th, 2023.

Capital suggestion: Shift the focus
By Dr Farrukh Saleem The News October 15, 2023
Much of the government’s attention in Pakistan has been fixated on the rupee-
dollar exchange rate. While this rate undeniably holds significance in the country’s
economic landscape, it should not be the sole focus when addressing Pakistan’s
myriad economic and financial challenges. Instead, a more comprehensive
approach is needed – one that looks beyond exchange rates and takes into account
various critical indicators, with a particular emphasis on the budget deficit.

The rupee-dollar exchange rate has garnered excessive attention. This fixation
neglects the broader economic picture. Pakistan’s economic health is influenced by
a complex interplay of indicators such as inflation management, unemployment,
national debt, trade balance and GDP growth.

One of the key indicators that deserves more attention than any other is the budget
deficit. Budget deficit, simply put, is the difference between government revenues
and expenditures. When expenditures exceed revenues, it leads to a budget deficit.
This is a crucial metric to monitor because it has far-reaching implications for the
overall economy.

A persistent and elevated budget deficit compels the government to engage in

excessive money printing. This extensive money supply expansion has resulted in
numerous unfavorable consequences, such as inflation and the devaluation of the
Pakistani rupee. The consistently high budget deficit has also led to increased
borrowing and a mounting national debt. The budget deficit is indeed the underlying
cause of a hundred economic ills.
A direct link exists between the budget deficit and the devaluation of the Pakistani
rupee. The government’s budget deficit of Rs8200 billion signifies that its
expenditures surpass its revenue collection by the same amount. To cover this
deficit, the government has resorted to massive borrowing, primarily through bond
issuance, amounting to trillions.

This substantial increase in the money supply has infused a significant amount of
currency into circulation, consequently triggering pronounced inflationary
pressures. An excess of currency in circulation diminishes the value of each unit of
currency since there is a surplus of currency in relation to available goods and
services within the economy. Consequently, the purchasing power of the Pakistani
rupee has eroded, resulting in higher prices.

Administrative actions, such as efforts to combat currency smuggling and increased

scrutiny of exchange companies, have yielded certain positive outcomes. However,
it is crucial to acknowledge that administrative measures have inherent limitations
and are not a sustainable solution. Administrative actions cannot replace the need
for a comprehensive policy approach. The question we must address is whether we
have a viable policy strategy in place to effectively reduce the budget deficit.

In conclusion, it is high time Pakistan shifted its focus from the fixation on the rupee-
dollar exchange rate and adopted a more holistic approach to its economic
challenges. The link between the budget deficit and the devaluation of the rupee is
undeniable. Excessive borrowing and money supply expansion, driven by the deficit,
has eroded the rupee’s purchasing power. This is the cycle that must be broken.

While administrative measures have yielded some positive results, they are not a
panacea. We need a robust and sustainable policy strategy to tackle the budget
deficit head-on. Only by doing so can we pave the way for a more stable, resilient,
and prosperous economic future for Pakistan. It’s time to shift our focus and take
decisive action for the well-being of our nation.

The writer is a columnist based in Islamabad. He tweets/posts @saleemfarrukh and

can be reached at: farrukh15@hotmail.com
BRI: Connecting Dreams
Syed Ali Nawaz GilaniOctober 15, 2023Opinions, Columns

Ten years have passed since the inception of the BRI. This decade is more than a
mere marker; it is a milestone on the BRI’s journey and, simulta­neously, a new
beginning. It signifies the progress and achievements of the past and the promise of
the future.

A decade has graceful-ly elapsed since the incep-tion of the Belt and Road Initia-tive
(BRI). This timeframe, though it might seem a mere notch on the calendar, holds a
significance that extends far beyond a simple mark-er. It represents not just the
prog-ress and achievements of the past but, concurrently, a promise of an even
more promising future. This is a journey that, by its very essence, refuses to bow to
the constraints of time. It’s a story still unfolding, a testament to the unyielding
spir-it of progress and cooperation that characterises our era.

In the grand tapestry of global co-operation and economic develop-ment, the BRI
stands as a beacon of progress and potential. As the BRI commemorates its 10-year
mile­stone, it’s not just a moment for retrospection; it’s the inception of a new era.
The odyssey of the BRI has been nothing short of remark-able, reshaping the
landscape of in-ternational collaboration, propel-ling economies towards growth,
and threading infrastructural con-nections across the globe.

One of the most striking aspects of the BRI is its transcendent abil-ity to soar above
political and geo-graphical divisions. With the in-volvement of over 150 countries
and 30 international organisations as signatories, it has a United Na-tions with
diverse backgrounds and ambitions. This global consor-tium under the BRI stands as
a tes-tament to the vision of a shared destiny and mutual prosperity.
The BRI has shifted from being a mere aspiration to a tangible force for change,
giving rise to over 3,000 cooperative projects that span di-verse sectors, from
transporta-tion to energy, trade, and tech-nology. These endeavours have given
birth to bustling ports, high-speed rail networks, and flourish-ing economic zones,
among numer-ous other initiatives. The BRI has transformed into a catalyst for
in-frastructural development and eco-nomic progress.

Supporting the BRI is a massive investment, approaching the tril-lion-dollar mark.

This substantial financial commitment, underwrit-ten by China and other
participat­ing nations, is the lifeblood of BRI’s development, ensuring the success­ful
implementation of its projects on a global scale.

Nevertheless, as we focus on the physical impact of the BRI, we should not overlook
the social and economic underpinnings, often eclipsed by the limelight. For
in-stance, within the China-Pakistan Economic Corridor (CPEC), a flag-ship BRI
project, an essential em-phasis has been placed on human development, even in
the face of the clamour created by disinformation.

Realising the full potential of these developmental projects and investments can be
furthered if Pakistan effectively confronts the challenges posed by disinforma-tion
and propaganda propagat-ed by CPEC detractors. Achieving this objective is entirely
feasible if all stakeholders rally under a com-mon banner, underscoring the
im-portance of mutual trust while safeguarding economic policies and decision-
making from the dis-cord sown by political differences. Furthermore, the legacy of
the BRI stretches beyond bricks and mor-tar and economic growth. The BRI
transcends borders, not just con-necting countries physically but also fostering
mutual understand-ing and shared prosperity.
As we reach this momentous 10- year mark, let us not become en-snared by the
past. Instead, let us keep our eyes fixed on the limitless horizon. The journey of the
BRI is not a finished tale but a story still in the making, a testament to the
unre-lenting spirit of progress and coop-eration that characterises our era.

This decade signifies far more than a mere commemoration of past

accomplishments; it serves as an unwavering embrace of the fu-ture. It symbolises
a promise of uncharted potential that beckons from the horizon, a vision that
tran-scends the confines of history.

The Belt and Road Initiative (BRI) isn’t a relic of bygone times, an inert monument
to past endeav-ours. Instead, it stands as a living, breathing entity, pulsating with
vi­tality. It doesn’t dwell in the shad­ow of its own history; rather, it propels itself
forward, tireless-ly crafting new narratives, explor-ing new frontiers, and sowing the
seeds of fresh possibilities.

Within this living entity, the seeds of innovation and cooperation ger-minate,
fostering the promise of a future where nations collaborate, economies flourish, and
prosperity is shared. The BRI is not bound by the constraints of history; it is
un-burdened by the weight of the past. Instead, it forges ahead, an ever-ex-panding
tapestry of hope and op-portunity, charting a course toward a brighter and more
interconnected world. Stepping into the BRI’s sec­ond decade, we are reminded
that this initiative is not static; it’s a dy­namic force, an enduring testament to what
can be achieved when na-tions unite with a common pur-pose, creating a legacy
that reso-nates for generations to come