Daily Times

The judiciary as a custodian of the constitution and guarantor of the fundamental rights of the people is not only considered as the most sancrosanct organ of the state machinery, but also a foundation on which civilisations are built. All the religious and political philosophies in the world ungrudgingly acknowledge and espouse the independence of the judiciary as a means to ensure social and political amity, peace and progress in any society, lack of which can cause anarchy, chaos and upheavals.

The concept of independence of the judiciary, however, does not imply absolute and unbridled freedom and the licence to trespass into the domain of the responsibilities of the other state institutions. The judiciary in the discharge of its constitutional role is bound to respect the principle of trichotomy of powers enshrined in the constitution itself. Unfortunately, the judiciary in Pakistan does not have an enviable record as regards adhering to the foregoing constitutional requirements. It is largely responsible for the tragic and disastrous detour from the democratic and constitutional path envisioned by the founder of the nation. It validated the military coups in the presence of article 6 of the constitution. Not only that, it also authorised the dictators to amend the constitution according to their own whims, notwithstanding the fact that the judiciary even itself did not have the power to amend the constitution, what to speak of authorising a dictator to make amendments. The nation is still haunted by the fallout of those judicial indiscretions.

Regrettably, the hopes for a break from the unenviable past, kindled by the restoration of the present judiciary as a result of the lawyers movement, have failed to materialise and the unrelenting tragedy of judicial indiscretions continues unabated. The judiciary in its zest for playing to the gallery, collateral off shoot of the movement for restoration of the judiciary, has gone overboard and given decisions that either violate the relevant constitutional clauses or represent a transgression into the domain of powers of the other institutions. The disqualification of the prime minister as chief executive and as member of parliament by the Supreme Court (SC) is a classic example of deciding cases in breach of the constitution. The development has created a frisson of fear among people who have witnessed the debilitating impact of the past decisions of the judiciary. A three-member bench altering the decision of a seven-member bench is unheard of in the history of jurisprudence. The seven-member bench had not disqualified the prime minister but the three-member bench nullified the understanding of the former in regard to the scope of article 63(1) (g )and decided the case in a roller coaster manner. The decision unfortunately also rendered article 63(2) (3) redundant in relation to article 63(1) (g).

The disqualification of the prime minister is a sequel to the alleged non-compliance of the SC orders in the NRO case. Constitutional experts are of the view that the NRO case, for reasons best known to the judiciary, has been used as a red herring to torment the government. There is a permeating view that the ordinances issued by General Musharraf between November 3 and December 15, 2007 had already become null and void before the court decision because they were not presented in the assembly for its approval within 90 days as per the constitution. The SC in its decision of July 31, 2009 also nullified those ordinances, but surprisingly asked the government to present them in the assembly for their ratification or otherwise within the prescribed period in the constitution, which according to the court order commenced from the date of judgment. The SC through this order actually re-promulgated those ordinances and thereby encroached upon the constitutional power of the president. It is further contended that while the SC decision to declare the NRO ultra vires of the constitution was beyond any reproach, its insistence on writing a letter to the Swiss court was unconstitutional as the president enjoyed complete immunity under article 248. In fact, presidents and heads of government do enjoy this immunity from prosecution all over the world. A very recent example is the French President Sarkozy against whom legal proceedings in certain cases including the Agosta submarine case were held in abeyance during his tenure of office and only now have been activated after his relinquishing the presidency. Perhaps it would be pertinent to quote former Judge of the Indian Supreme Court Justice Karmandey Katju on this issue, who while writing in an Indian newspaper said, “…Section 248(2) of the Pakistani Constitution states that no criminal proceedings whatsoever shall be instituted or continued against the President or Governor in any Court during his term of office. The language of the above provision is clear, and it is a settled principle of interpretation that when the language of a provision is clear the court should not twist or amend its language in the garb of interpretation, but read it as it is. I therefore fail to understand how proceedings on corruption charges (which are clearly of a criminal nature) can be instituted or continued against the Pakistani president. Moreover, how can the court remove a prime minister? This is unheard of in a democracy. The prime minister holds office as long he has the confidence of parliament, not the confidence of the Supreme Court. I regret to say that the Pakistani Supreme Court, particularly its Chief Justice, has been showing an utter lack of restraint. This is not expected of superior courts. In fact, the court and its Chief Justice have been playing to the galleries for long. It has clearly gone overboard and flouted all canons of constitutional jurisprudence.”

Pakistan is witnessing a shift from judicial passivism to judicial activism, which negates the very spirit behind the lawyers’ movement for the restoration of the judiciary. The conduct of the judiciary is also responsible for creating an ambience of confrontation between different state institutions. However, the government deserves unqualified accolades for accepting the decision though it had certain reservations about it.

The political opponents of the government are vociferously hailing the disqualification of the prime minister and one can understand their glee over the demise of their political enemy for whom they have been gunning for long. But it is really very distressing when the endorsement for the unconstitutional decisions comes from members of the intelligentsia and even some sections of the lawyers community. What Pakistan needs today is equilibrium between the state institutions and their strict adherence to their defined constitutional roles.

The writer is a retired diplomat, a freelance columnist and a member of the visiting faculty of the Riphah Institute of Media Sciences, Riphah International University, Islamabad. He can be reached at ashpak10@gmail.com