The deteriorating relationship between the judiciary and the executive is a matter of grave concern for those people who aspire to make smooth and harmonious the functioning of the pillars of state. The judiciary considers that all its decisions should be implemented, whereas the executives believe the judiciary is interfering in their sphere of influence. Patriotic citizens are perturbed and are conscious of the fact that some egoists, by assuming high positions, have embarked upon a journey to satisfy their own egos.
Under these circumstances, those representing the pillars of state need to use reason and realism — not emotionalism — while dealing with the state of affairs. The framers of the constitution, to avoid any confrontation, assigned specified roles to the pillars of the state. If we follow the trajectory provided by the constitution, deadlock can be avoided.
Pakistan has a unique history because of military interventions and, even in these days of democratic dispensation, it is still an open debate as we hear calls for the armed forces to aid the Supreme Court (SC) for the implementation of its orders. Many retired judges and some lawyers are adamant that the SC, under Article 190, can direct the armed forces for the implementation of its orders. Many people, in the guise of legal experts, have their own selfish agenda to follow — by instigating these institutions they are conspiring a head-on collision.
The people are purposely being confused by the misrepresentation of this article in the media. The articles that relate to the judiciary provide a full description about its jurisdictions, orders, judgments and their implementation.
Part VII of the constitution covers the judicature, which includes a SC, a High Court for each province, a High Court for Islamabad, Federal Shariat Court and such other courts as may be established by law. The preamble and Article 2-A of the constitution emphasise the need for independence of the judiciary, which is inevitable not only for democracy but also for the strength of other institutions. Independence of the judiciary means to decide a list pending before it without being influenced by any external factor or bias. Hence, for the survival of rule of law, the orders of the courts have to be obeyed unless overturned, modified or stayed by the appellate or revisional courts.
The constitution provides a mechanism for the implementation of the SC’s orders. Article 187 states that the SC shall have the power to issue such directions, orders or decrees as may be necessary for doing complete justice in any matter pending before it, which shall be enforceable throughout Pakistan and shall be executed by the High Courts of that province. Articles 189 and 190 declare that the decisions of the SC shall be binding on all courts and organs of the state.
The plain language of Article 190 maintains that all executive and judicial authorities throughout Pakistan shall act in aid of the SC, which means that the might of the state must stand behind court orders for the survival of the rule of the court in the country. The executive authority of the state has to come in aid of the party seeking implementation of the court’s orders.
Chapter II of Part XII specifically deals with the armed forces of Pakistan. These are only disciplined forces that have constitutional backing. This chapter contains three articles from 243 to 245. In addition thereto, there is an oath under Article 244, which is taken by members of the armed forces.
Article 243 states that the federal government shall have control and command of the armed forces and the president, though the supreme commander of the armed forces, shall, on the advice of the prime minister, appoint all the chiefs of the armed forces including the chairman, joint chief of staff committee. The armed forces shall, under the direction of the federal government defend Pakistan against external aggression.
The framer of our constitution has assigned a very peculiar function to the armed forces, so no other role can be allocated to them. Secondly, this is a disciplined force under the control and command of the federal government, therefore, no other institution, howsoever, sacred, without the blessings of the federal government can direct or order the armed forces.
There are judgments, in the cases of Shahid Orakzai and Liaquat Hussain, whereby this article was interpreted by the SC but in an erroneous manner. The SC, however, through its judgment titled ‘Sindh Bar Association Case’ has already corrected its previous point of view regarding the role of the armed forces. The relevant portion of the judgment is reproduced as follows:
“On a plain reading of the provisions of Article 245(1), the function of the armed forces can be bifurcated into two categories, namely, they shall defend against external aggression, and, subject to law, acting aid of civil power when called upon to do so. Under clause 1 of Article 243, the control and command of the armed forces is vested in the federal government, therefore, in the performance of both the categories of functions, the armed forces act under the direction of the federal government. Thus, the provisions of clause 1(a) of Article 243 under which the supreme command of the armed forces vests in presidents, does not, in any manner, derogate from the power of the federal government to require the armed forces to defend Pakistan against external aggression or threat of war, or to act in aid of civil power in accordance with law. The constitution does not envisage any situation where the armed forces may act without any direction by the federal government.
“Let it be made clear that any action of the armed forces undertaken without a direction by the federal government shall be unconstitutional, illegal, void ab initio and consequently of no legal effect. Any member of the armed forces, including the chairman, joint chief of staff committee and three services chiefs, namely, the chief of army staff, the chief of naval staff and the chief of air staff, or any person acting their authority, or on their behalf, who acts in performance of either of his functions of defending Pakistan against external aggression, or of acting, subject to law, in aid of civil power without any direction by the federal government acts in violation of the constitution and the law and does so at his own risk and cost.
“…Within such parameters, a soldier must remain committed to defending Pakistan until the last drop of his blood against external aggression or threat of war, and subject to law, act in aid of civil power when called upon to do so under the direction of the federal government.”
It is concluded that the armed forces, under the constitution, can follow the command of the federal government only. If any other institution requires assistance of the armed forces, it may get it through the federal government. As far as the judgments of the constitutional courts are concerned, and if they are not being implemented by the executives, the courts have the power under Article 204 of the constitution to start proceedings against the contemnors and convict them for contempt of court. The courts may impose heavy fines to the defaulting governments that are not serious in implementing their judgments, but, while doing so, the courts have to be strictly within the ambit prescribed by the constitution. We, the people of Pakistan, are passing through our most difficult time since the creation of the nation. Those who have authority of must take steps in the interest of the people and country. It is the people who are suffering due to the unnecessary tussle between the judiciary and executives.
The writer can be reached at [email protected]