Daily Times

Finally, the federal government has de-notified five high court judges following the Supreme Court’s (SC’s) May 18 judgement on the PCO judges’ intra-court appeals against their removal as per Article 209 of the constitution. These former judges took oath under the (now) annulled Provisional Constitution Order (PCO), 2007 and ceased to hold office after the July 31, 2009 decision of the apex court which had declared all actions taken by former president Musharraf under the November 3, 2007 emergency imposition as unconstitutional.

The de-notification of the PCO judges took more than two years — a period during which a tussle between the two institutions of the state over their powers kept emerging off and on. On several occasions, the executive defied the implementation of the apex court’s orders on one excuse or another. It deliberately slowed down the provision of justice in different cases by giving unconsidered arguments and using delaying tactics. The situation continued without a consideration that the executive’s flip-flops vis-à-vis the judiciary are not in anyone’s interest. It is detrimental for both democracy and the country.

Due to the executive’s invariable disregard towards the superior court’s orders, there was a growing pressure on the judiciary from some elements that it should involve the army by invoking Article 190 of the constitution to take action against the executive for not implementing its verdicts in letter and spirit. The fact might have been ignored that there is no such provision in the constitution and according to Article 190, the judiciary is bound to demand from the executive to use military power in case implementation on any of its orders is desired. The army in turn cannot, constitutionally at least, act without directions from the government.

The tussle between the executive and the judiciary is not a new phenomenon. It started the day judicial activism began under the umbrella of its newly won freedom after the months-long lawyers’ movement throughout the country. Not only the PCO judges’ case, recently the Hajj arrangements corruption case and the National Insurance Company Limited (NICL) case intensified the tussle between the two institutions to an extent that threatened to derail democracy. Backdoor channels became active to cool down the rising temperature between the executive and the judiciary and the federal government gave repeated assurances that it would comply with the court’s orders. It is a good sign that the federal government has realised that this is a losing battle, only causing it more political damage. It has come to terms with the judiciary by implementing the SC judgement on PCO judges. However, the delay raises the question why the federal government took so much time to abide by the court’s orders. Why did it let its relations grow so hostile with the judiciary? Why did it put its reputation at stake? Every institution has to play its role according to the book to keep the democratic set up going.

No doubt, the SC has been successful in exerting its power. However, some constitutional experts are criticising the SC judgement on the PCO judges’ appeals as discriminatory. Declaring the November 2007 PCO judges as unconstitutional while clearing those judges who took oath under previous PCOs has not found unanimous acceptance. Unfortunately, no one has come out unscathed in this tussle between the executive and the judiciary. The maturity that is expected from state institutions is yet to take root. Democracy demands that state institutions work within their boundaries, avoiding a transgression into other institutions’ turf.*