A thinly-veiled back-and-forth between the executive and the judiciary on Wednesday has set the stage for potentially charged proceedings today in a case that has now become the latest battleground for two equally adamant institutions.
Though both sides have stressed to the contrary, it is difficult to categorise the situation as anything but a potential ‘showdown’.
Wednesday’s proceedings in the case saw a five-member bench of the Supreme Court, led by Chief Justice Iftikhar Muhammad Chaudhry, vent anger against the prime minister’s apparent punishment of a top bureaucrat for obeying the court’s orders.
The chief justice has sought a written explanation for the action taken against Establishment Secretary Sohail Ahmed, who was removed from his post by the prime minister on Tuesday, hours after he followed the court’s directives to bring back the chief investigator of the Hajj corruption scandal, being probed by the Federal Investigation Agency (FIA).
The explanation is to be written by Prime Minister Yousaf Raza Gilani himself, and must be submitted to the court today (Thursday). The prime minister has also been ordered to reinstate the ousted establishment secretary by today.
The chief justice directed Attorney General for Pakistan (AGP) Maulvi Anwarul Haq to call on Gilani in person to convey the court’s orders.
Earlier investigations into the scandal have seen a number of high-profile names, associated directly with the ruling party, being questioned – and in some instances indicted.
The court also directed the AGP to ‘enlighten’ the prime minister on the legal and constitutional value of the court’s verdicts.
‘The court has been provoked’
Getting straight to the point, the chief justice asked the AGP, “Why was he (establishment secretary Ahmed) made OSD?”
The chief justice observed that the secretary was ‘punished’ for obeying court orders and that the prime minister acted in haste. Ahmed had sent the summary to the competent authority for reinstating Hussain Asghar, but when no action was taken, he, following court orders, issued the notification using his discretionary powers, said the chief justice.
He went on to say that the court respects the prime minister’s authority of transferring officers; however, under article 5 and 190 of the constitution, every authority is bound to act in aid of the Supreme Court.
“The court has been provoked by making Sohail Ahmed an OSD and a wrong message has been sent to honest officers, who cannot be left upon the mercy of the executive,” said Chaudhry.
After tea break, the AGP informed the bench that he was unsuccessful in contacting the prime minster who was busy in a scheduled cabinet meeting in Islamabad.
“We believe the prime minister is fully aware of the constitution and understands the value of court orders and yet despite this, he made Sohail Ahmed OSD for obeying court orders,” the chief justice remarked. He further told the AGP: “We can pass an order right now, but we will give you one more chance.”
The chief justice directed the AGP to ask the Prime Minster to repost Sohail Ahmed as establishment secretary and inform him of the consequences of defying Supreme Court’s orders.
Cabinet’s ‘special briefing’
Following the orders passed during Wednesday’s proceedings, the federal cabinet discussed important cases where the government feels the judiciary is intervening in the executive’s domain.
Babar Awan, who does not hold any ministerial portfolio, was invited to brief the members on the legal aspects of some high-profile cases.
After a press briefing on the cabinet meeting, a separate handout was distributed to the media regarding Awan’s special briefing.
“The government will also ensure that the State Institutions must act in accordance with the Constitutional parameters, laws and within the given framework,” read the handout.
A source who attended the meeting told The Express Tribune that the meeting was meant to prepare the cabinet to defend the government stance on all important cases being taken up by the court in the coming days.
“The government can neither appoint nor dismiss a Judge of a Constitutional Court through a notification except the mechanism given in various Articles of the Constitution,” the handout further read – referring to past rumors that, if the situation warranted, the government might withdraw a 2009 notification, through which the incumbent judiciary was reinstated by the prime minister. This notification has not been ratified by parliament.
When questioned about the over three-hour-long briefing by Babar Awan, the information minister said: “Dr. Babar Awan explained the details of the judgments of the Supreme Court”.
“He (Babar Awan) also briefed the Cabinet about the powers and responsibilities of different institutions of the state with especial reference to the principle of trichotomy of powers as given in the Constitution,” she added.
According to a cabinet member who wished not to be named, Babar Awan was of the view that coercive measures were being used to get court decisions implemented, bypassing the executive.
According to sources, Babar Awan accused the court of being biased against the federal government.
Following the cabinet meeting was a full court reference, held to acknowledge the contributions made by Justice Javed Iqbal, due to retire by the end of this month.
During the full court, it was reiterated that the Supreme Court will ‘preserve, protect and defend the Constitution’ and will always uphold the rule of law and dispense justice to all without fear and favour. Since the restoration of an independent judiciary, people have great expectations from the judiciary, Chief Justice Iftikhar Muhammad Chaudhry said.
The last word?
The apparent exchange didn’t end there. A press release quoted Prime Minister as saying that the resurrection of democracy owed to the supreme sacrifice of assassinated PPP chairperson Benazir Bhutto – and that the government would not let this sacrifice “go to waste.”
Talking to a delegation of Parliamentary Secretaries on Wednesday evening, the press release said that Gilani maintained that if all state institutions work within their constitutional ambits, democracy would flourish in the country. He was said to have added that Pakistan’s democracy cannot go into a “blind alley.”
“Those who spread despondency are doing no service to democracy, he observed,” said the release.
Published in The Express Tribune, July 28th, 2011.