Clash of institutions
by
Javed Hafiz |
Recent decisions rule out such prospects
Some political pundits have been predicting an impending clash between the judiciary and executive since the proactive chief justice was reinstated to his post last year. Such predictions became more persistent when the apex court struck down the controversial National Reconciliation Ordinance (NRO) promulgated by General Pervez Musharraf paving the way to Benazir Bhutto’s return.
As if some people are looking for a clash of institutions in Pakistan, some TV channels are talking of institutional tensions round the clock. When Zardari and Nawaz Sharif embraced each other recently after presidential signing of the 18th amendment, a number of persons that I know, were quite unhappy. They wanted the two political leaders to fight on into perpetuity.
The two top political leaders know very well that their survival lies in mutual accommodation. The 18th amendment has an interesting new clause that allows even the convicts to hold public offices after a gap of five years. This not only serves Nawaz Sharif (convicted in hijacking case, later pardoned) but also protects the political future of Zardari should he be convicted at some stage. This explains the much talked about warm embrace.
For now, an interesting development is that the new mode for appointment of judges in the 18th amendment has been challenged. Some observers expect a titanic clash should the Supreme Court strike down the new procedure. The case against the new procedure is based on the premise that the principle of separation of powers has been violated. The new method gives the executive and the legislature a role in selection of superior courts judges.
Those predicting an impending clash have been somewhat disappointed by some of the recent decisions by the apex court. To their dismay, those decisions have not been too strident. For example, when Jamshed Dasti, a ruling party parliamentarian, was caught with a fake degree, he was literally let off the hook by the court. He was given the option of resigning which he readily accepted. He did not suffer any other penalty.
In a recent high profile case regarding import of LNG, again the court has been correct but soft. The code’s requirement of awarding the contract to the lowest bidder had not been fulfilled in this case. What was even more objectionable was the fact that the lowest bid was not even mentioned in the summary to the Economic Co-ordination Committee (ECC) which was to award the contract. This was a multi billion dollar contract, spread over the years. The culprits were caught red handed. However the court ordered that the entire bidding procedure be repeated under the supervision of the Prime Minister. It left the task of punishing those responsible for this act of commission, to the government.
The government has been dragging its feet in implementing the decision on NRO, which was announced last December. It has not written to the Swiss authorities regarding Zardari cases. Nor has it taken action against Malik Qayyum, the former attorney general who had written to the Swiss authorities to close the case, without any written authorisation. The court has not pushed the matter too much and waited patiently for the government to take action. However, of late, it appears to be losing patience. In an aside but related case the court told deputy attorney general,” You have made a mockery of the court. Should we issue notice to the prime minister?”
In yet another high profile case, the apex court has reversed the promotions of 54 top level bureaucrats. The court thought that those promotions were made setting aside the merit and transparency. This judgment is a blow to Prime Minister Gilani’s image.
Coming back to the court case against the new mode of judges’ appointment, it is argued that this provision of the 18th amendment violates the basic structure of the constitution, separation of powers between the executive, judiciary and the legislature being the bedrock of the Pakistani constitution. The case is strengthened by the judicial precedents from Germany and India. The Theory of Basic Structure, which has been upheld in both these countries, says that the parliament is not authorised to change the basic structure of the constitution.
However, the practice in Pakistan has been different. Here, the superior courts have, at least on two occasions, not recognised the sanctity of this theory. But while saying so, former chief justice Ajmal Mian had said that the ruling did not mean this theory was non-applicable in Pakistan for all times to come. While this ruling gives some space to the judiciary, a constitutional clause, mentioned in this column last week, makes a review of the amendment by the court rather difficult.
While the apex court has been cautious and conciliatory, it has not compromised on principles. While waiting for the court judgment on the appointment of judges, everybody is keeping his fingers crossed.
(Javed Hafiz is Pakistan’s former ambassador to the Sultanate) |
Other comment for Javed Hafiz
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