Daily Times

Punjab Chief Minister (CM) Mian Shahbaz Sharif has castigated the federal government for, as he put it, declaring an open war against the judiciary by not implementing its decisions and in the same breath he also vowed to sacrifice his government for restoring the honour of the judiciary. He also warned that if the government did not change its ways, the PML-N might resort to ‘direct action’ like the long march that was undertaken to restore the dignity of the institution. If taken at its face value, the CM’s resolve sounds nice, does it not? Is it not also in harmony with the incessant rhetoric that one comes across very often in the media and in the discourse of some intellectuals? The spontaneous answer is ‘yes’.

The question, however, is: does he really mean what he is saying? Has Mr Sharif and his party shown the same level of respect to the judiciary that he is expecting from the government now? I am afraid Mr Sharif and his party’s credentials are not so enviable in this respect. People have not forgotten what the PML-N and the former Prime Minister Nawaz Sharif did to Chief Justice (CJ) Sajjad Ali Shah. The spectacle of PML-N stalwarts attacking the premises of the Supreme Court (SC) amply demonstrated their concern towards the dignity of our institutions and is still fresh in the memories of those who witnessed that horrible moment. There is a dictum that it is not important what is being said but what is important is who is saying it. The WikiLeaks has also amply revealed the mindset of Shahbaz Sharif about the judiciary and the CJ. Viewed in the backdrop of the foregoing, the concern shown by Shahbaz Sharif over the non-implementation of the SC decision by the government seems mere politicking designed to settle score with the government.

Regrettably, the debate on the stalemate between the SC and the government has not been as erudite and anodyne as one would expect. Even the media has failed to generate an informed debate on the issue and seems to have been swayed by the euphoria that surrounded the restoration of the judiciary and its independence without understanding what independence of judiciary really means. The emphasis has only been on the defiance of the government and very few have bothered to unravel the constitutionality or otherwise of the SC decisions. True, the SC being the highest and the last forum for adjudication, its decisions are final and binding until it overrules itself. This is an internationally recognised principle of law and there can be no two opinions about it. However, in countries where the separation of powers is incorporated in the written constitutions, the judges have limited powers as per the constitutional provisions and are not supposed to go beyond them in their adjudicating role. Their role is not to declare what the law should be, but only to say what it is. What needs to be looked at is whether the SC has stuck to the doctrine of limited powers as per the constitution or merely spoken its mind on the issues brought before it for adjudication. To find an answer to this question, we may have to throw some light on the decisions with a critical eye.

Let us look at the NRO case first from a constitutional perspective. The court while nullifying it, asked for reopening of all the NRO cases, including the Swiss cases against President Zardari knowing fully well that the president enjoys immunity from prosecution in any court of law during his tenure under Article 248(2). It did not respect the ouster clause. The decision had proclivities of playing to the gallery rather than sticking to the law and the constitution. Writing to the Swiss Court by the government for reopening cases against the president would also have been a breach of the Article 248(2). That explains why the government did not do so. However, out of 8,034 cases, 8,032 cases were reopened as per the decision of the court.

The SC in its decision of July 31 nullified the ordinances issued before November 3, 2007 and between November 3 and December 15, 2007, earlier given permanence by the PCO judiciary. While declaring them invalid the court also decided that since it had attributed invalidity to these ordinances, therefore, the period of 120 days and 90 days respectively prescribed in Article 89 and Article 128 of the constitution would be deemed to commence from the date of the judgement and steps be taken to present the said ordinances before parliament or the respective provincial assemblies in accordance with the law. According to an eminent legal expert, the court in fact re-enacted those ordinances and irrespective of whatever the intentions of the court, it represented an encroachment on the constitutional powers of the president.

The SC by entertaining petitions against the 18th Amendment totally neglected the ouster clause of the constitution, which says, “No amendment of the constitution shall be called in question in any court on any ground whatsoever.” By opting to hear the case, the SC itself violated the constitution. Not only that the court through an interim order also made certain recommendations to re-amend the constitution, our parliament obliged the court through 19th Amendment to avoid confrontation. So in this particular case the judges assumed the role of the legislators, which has paved the way for the judiciary’s interference in the domain of parliament and could have very serious repercussions in the future. It is pertinent to mention that while the SC in the above cases has not respected the ouster clauses, it has consistently been respecting the ouster clause in the Pakistan Army Act. The SC has been selective and inconsistent with regard to the ouster clauses.

Constitutional experts believe that the rulings given by the SC in the chairman National Accountability Bureau (NAB) case and the judicial appointment case reflect the court’s perception of its unlimited powers and the exercise of these powers without any restraint. They believe that the ruling that the CJ should also be consulted before appointing an individual as chairman NAB amounts to interference in the domain of powers of the executive. NAB is an executive agency under the control of prime minister. According to the NAB Ordinance, the chairman is to be appointed with a bipartisan support. There is absolutely no legal basis for the CJ to get involved in the process. In the judicial appointment case, the court has disregarded its own recommendations made through the interim order in the 18th Amendment case, which were incorporated in the 19th Amendment. In defending the authority of the Judicial Commission, the SC does not seem to have applied restraint and taken into account the age-old maxim that no one should be the judge in his own case. As is evident, the decisions of the SC in all these cases lacked the aura of constitutionalism and consciously or unconsciously it also has been instrumental in creating an ambience of confrontation between the institutions.

The writer is a freelance columnist