The Supreme Court of Pakistan seems to be tying itself in knots. Some recent developments suggest that the learned judges’ exuberance is creating legal, political and administrative complexities to which even their collective wisdom might not provide workable solutions. Ironically, these complexities have emerged from two subjects that have recently won the esteemed Court’s praise, besides injecting much potency in its judicial conduct — one is Balochistan and the second is the judges’ stern handling of Pakistan’s powerful establishment comprising civil and military bureaucracy and intelligence agencies. Both matters are considered twin feathers in the cap of the Supreme Court but now appear to have raised fundamental questions about the implications of the judiciary’s handling of sensitive challenges.
The detailed judgment last month that practically declared the Nawab Aslam Raisani government constitutionally unviable, has unleashed a storm of problems. The federal government has completely ignored the Court’s order to exercise “all constitutional options” (read: governor’s rule) to fill the vacuum created by the Court’s stunning verdict about the Raisani government. The president and the prime minister of Pakistan have both whole-heartedly endorsed an admittedly dysfunctional but politically alive and democratically mandated set-up in Balochistan. Premier Raja Pervaiz Ashraf’s visit to Gwadar last week has sent the message out to the Court that the man is going to remain chief minister come what may. Mr Raisani himself has not done a bad job of seeking complete support from his provincial allies. Governor Zulfikar Magsi has also thrown his weight behind the beleaguered chief minister and refused to either impose emergency or pave the way for a new leader of the house. The civil administration has gotten back to its normal work. It is taking orders from the provincial cabinet and carrying out the directives of the chief minister in letter and in spirit. The Balochistan government is intact and working, whereas, according to the Court’s order, it should have been long gone and a new arrangement should have come up by now.
Would the Supreme Court now turn its judicial push into a shove and insist that its verdict about the fate of the Balochistan government be considered final? If they do that, then the same set of judges who have been hailed as saviours of Balochistan might be cast as its tormentors, defied and decried by blue-blooded Baloch politicians. But if they relent and find a middle path, serious concerns would be raised about the sagacity of their earlier verdict, opening them to the accusation of making this sensitive province a media plaything. Even if the Court holds firm and out-of-assembly opponents of the Raisani government start a street campaign in its favour, this will be a recipe for more turmoil in an already sad, divided and bloodied part of Pakistan.
The other claim to fame of the Supreme Court — nailing down an almighty establishment — has also lately come under severe strain. It has landed the judges in a somewhat awkward situation where the usual political corners that used to support them on a myriad of concerns seem to be backing off. This became evident in the judiciary’s critical spat with the generals. There is hardly any doubt that last week, there was a serious war of words between General Ashfaq Parvez Kayani and Chief Justice Iftikhar Chaudhry. Just as doubtless is the fact that the press release from the ISPR aimed part of its message about national interest being a reflection of multi-institutional consensus at the Court. The chief justice’s response was swift. While his meeting with a group of senior civil servants was planned well in advance and took place earlier in the day, the released text of the meeting was suitably adjusted to take care of the message from the GHQ. What is doubtful is whether the chief justice came out as a sure-shot moral winner from this bout. Most political parties chose to use General Kayani’s press statement as a timely reminder for course correction. Even the PML-N issued a measured response distancing itself from the Supreme Court’s repeated claims that only the judges can be the final arbiter in all national matters. This is unusual in times where offering support to the judiciary on all causes as well as kicking the establishment in the face for the smallest of reasons has become routine. Perhaps, even most pro-Supreme Court interests in the system have started to realise that the Court’s influence has become too massive which, if not hemmed in, could cause this carefully-mounted system of democracy to collapse before the coming elections.
Correction: The article earlier incorrectly stated "Qadir Magsi" as the governor instead of "Zulfikar Magsi". The error is regretted.
Published in The Express Tribune, November 13th, 2012.
COMMENTS (12)
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Supreme court shouldnt be making political statements. Its job is to continually strenghten the judiciary n the court system. Ensuring there is less red tape n improvement in the quality of lawyers. It should be working to strenghten itself as an institution n depoliticise itself. We can criticise the army as much as we like, but as an institution its absolutely brilliant. World renowned for its excellence. We need the judiciary to be work in a similar way to establish its pillars, so that no matter who the chief justice is, the judiciary continues to function independantly n ur common man off the street receives justice.
@shahid: Bravo! well said. PCO (26 Jan 2000 and than 12 May 2000) was unconstitutional as well, so will the judges stand for the trial of their own? Why not to spot the real issues of today and work together for resolution. The main thing is upcoming elections, we would never want them to be sabotaged. Lets us work for a fair, honest, aware and impartial elections.
Good analysis.In my view, if we want to avoid the sufferings of what happened in Somalia some years back, running of parallel government through court rulings/ orders/ hearings needs to be stopped. Such acts can destroy the organised structure of the state.
The Governor of Baluchistan is Mr Zulfiqar Magsi, Qadir Magsi is a Sindhi nationalist leader and not the Governor of Baluchistan
When did Qadir Magsi became the Governor of Balochistan?
The Chief of Army Staff has rightly remarked, " No individual or institution has the monopoly to decide what is right or wrong in defining the ultimate national interest." The COAS has not named any one but the Chief Justice and some other judges, through their actions, appear to have firm opinion that the Supreme Court is the sole ultimate authority. The Supreme Court has declared that Baluchistan government has lost its right to govern. The verdict has created a constitutional deadlock in the province which will futher deteriorate the administraion as well as, the law and order situtation in the province. There is almost consensus among the legal fraternity that the Supreme Court has no power to dismiss any provincial government, or to make an order having the identical consequences. Article 175 (2) states, " No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". The Constitution or any law have not conferred any such jurisdiction on the Supreme Court. The Order of the Supreme court has no constitutional sanction, therefore, is liable to be withdrawn, it also is in violation to the principle of provincial autonomy.
Implementation of the ruling on the Balochistan govt, may be entirely political decision. But the ruling on the retired generals should be a legal problem and I wonder why the Judiciary did not decide on the punishment and asked the civilian govt to decide on the suitable punishment. If the generals are still in service, they should have been prosecuted and punished by the military courts, Once out of service, they must obey the civilian courts and legal systems and there can be no exceptions. Taking the retired mil personnel back into service and trying them by military courts is a serious offense by military to protect its clan, be it in service or otherwise and military should not be allowed to do that.
Don't forget the constant rant of rightwing leaders that "only if the CJ is restored all the problems of the country would be solved". It was not too long ago that all these leaders had put their faith and Pakistan's future in the hands of PCO judges. I do not dislike IK but I am afraid of the same euphoria about his election. Leaders make false promises and people make unrealistic expectations only to get disappointed and blame it to democracy. Let us all get real and stop the daily corruption, laziness, dishonesty and greed rather than wait for a leader to descend and change us.
If the supereme court is trying the military generals and sentencing them for past mistakes then what about puting the judges including the chief justice on trial for thier past mistakes including taking oath on PCO and sentencing them.
It now looks clear that every institution of the state is falling in it's own trap.He who digs a pit for someone falls into it himself.
great analysis..spot-on.