Govt, judiciary back away from confrontation
The executive and judicial branches of government appeared to take steps back from the brink of confrontation on Friday, with the Supreme Court clarifying its earlier orders for the reinstatement of the establishment secretary, thereby reducing pressure on the PPP-led government.
While the court ordered the government to reinstate Sohail Ahmed as establishment secretary – one of the three highest positions in the federal civil service – it acknowledged that the government had the right to assign him a new post, but not to punish him for following the court’s orders. It said that the government was free to transfer him to a different position over the next seven days.
“Sohail Ahmed will remain establishment secretary until the new appointment,” the court order said, adding “if Sohail Ahmed is not given a new appointment within seven days, his notification [as officer on special duty] would be considered as null and void.”
The government, for its part, seemed to accept the court’s decision. Speaking to journalists outside the Supreme Court building after the hearing, Attorney General Maulvi Anwarul Haq termed the decision “a good one”.
“Under the prevailing conditions, it was a beautiful decision,” said the attorney general.
Former law minister Babar Awan also welcomed the decision, saying: “Today, the court has set criteria for posting and transferring bureaucrats.”
Many people would be disappointed when they hear that there was no confrontation between the judiciary and the executive, he added.
On Friday, a six-member bench of the Supreme Court was conducting hearings into the Hajj embezzlement scandal, in which former religious affairs minister Hamid Saeed Kazmi has already been implicated.
The controversy over the court’s orders regarding civil service appointments began when the government decided to transfer Hussain Asghar, then an additional director general at the Federal Investigation Agency (FIA), from his position as the lead investigating officer on the Hajj scandal, allegedly when his findings began taking a direction the government was uncomfortable with.
(Read: Confrontation unending)
Asghar was posted to Gilgit-Baltistan as the Inspector General of Police of the province. The court had ordered the establishment secretary, a position then held by Sohail Ahmed, to reinstate Asghar, an order with which Ahmed complied.
Prime Minister Yousaf Raza Gilani, however, was incensed that Ahmed violated his orders and made him an officer on special duty (OSD), citing as his reason the fact that the establishment secretary is not empowered to transfer officers above grade 21 (the second highest in the civil service).
On Tuesday, the court had ordered the FIA chief to reinstate Asghar as the lead investigator on the Hajj case. On Friday, however, the attorney general reported to the Supreme Court that government of Gilgit-Baltistan is unwilling to let go of Asghar’s services as the provincial police chief until the government offers a replacement appointment.
On Thursday, Gilgit-Baltistan Chief Minister Mehdi Shah and members of the G-B legislature expressed concerns over the Supreme Court order, saying they were happy with Asghar’s services and did not want to give him up.
The judges, however, were agitated at the attorney general’s response, with Chief Justice Iftikhar Muhammad Chaudhry saying that “a simple matter is being made complicated.”
Justice Akhtar Shahid Siddiqui asked Anwarul Haq if he felt the Gilgit-Baltistan government’s position was justified, to which the attorney general replied that he did not think so.
Justice Khilji Arif Hussain said the government did not seem willing to implement the court’s orders, adding that “Hussain Asghar would have arrived from Gilgit-Baltistan in 45 minutes if the government had willingness to get him back.”
The attorney general said that the government had implemented the court’s decision, though the chief justice retorted that the implementation was on paper only.
Hearings on the case were adjourned until an as yet unspecified date. (With additional input from APP)
Published in The Express Tribune, July 30th, 2011.
COMMENTS (21)
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Since the day of its restoration, Judiciary left no stone un turn to tease and irk Government. From NRO, NAB Chairman Case, Judges appointment case, DG FIA’s case, 18thamendment to Zafar Qureshi case, Judiciary violated its constitutional ambits and intervened in Executive’s authority. In case of Chairman NAB’s appointment Supreme Court openly violated constitution. 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.
@Fayyaz Haider: "@Mirza: please thoroughly read the constitution first then give your expert opinion."
Well we didn't know we had the CJ himself or one of his touts amongst us reading these comments, and evaluating them in the light of the constitution. But with due respect, time and again the judiciary has proved that their interpretation of constitution is twisted.
@Tauseef Gilani:
$10 Billion for Azad kashmir isnt such a bad deal. It never really was ours in the first place.
@Mirza: But what if the parliament decides to say, " handover Azad Kashmir to India for 100 Billion $ or pass a law that " makes members of parliment immune from prosecution for any crime..." or any such law that is specific to loyalty and protection of its elected members only and not to the state ,constituition and laws of Pakistan, as enshrined in article 5 of our constituition and to people who elected them..then which authority shall protect and uphold the fundamental rights of the people of pakistan as envisioned by our founding fathers..??? article 5 is all about our loyalty to our motherland in whatever shape it is in: " Loyalty to State and obedience to Constitution and law.-(1) Loyalty to the State is the basic duty of every citizen. (2) Obedience to the Constitution and law is the 1[inviolable] obligation of every citizen wherever he may be and of every other person for the time being within Pakistan.
@Mirza: please thoroughly read the constitution first then give your expert opinion. Supermacy does not any way allows sabotage of the constitution. Would you mind to tell the nation what constitution say about the verdicts and direction of the court. There is no dout that chief executive is responsible to appoint the departments heads but this is not that case. Why government changes every officer of investigation when he works honestly or within the constitution. This is not one case what about NRO. So called supreme Parliament didnot accepted the shamefull NRO but government also didnot fight in the court. Now why it feel pain after the courts verdict. Can't by not accepting courts decisions this government is going to be an offender of high trision. They want to be siyasi mazloom but cannot this time.
A Judge has to make judgement not to interfere in running the Government. The judge is showing attitude as their is going to start a bout between the cocks and people are watching interestingly start of the bout. No respect to court decorum and order and respect. It seems society is lacking now decency.
Parliament is a creature of the constitution. There is no dispute, that the constitution of the country is a supreme .
The duty of the Supreme Court is to interpret the law and see that it confines to the constitution. It is also the duty of the Supreme Court that the law is adhered to and followed without any favourtism or bias.
Parliament can amend the constitution if it remains within the basic spirit of the constitution.Think about it, if the parliament amends the constitution to extend it's term to 10 years, will it be legal?
“Parliament is Supreme”! Does it mean that parliamentarians give a damn about law of the land and they all are Supreme? Can their wives get loans of hundreds of billion rupees and are Supreme as well?. Can their piglets run around and plunder institutions and are Supreme as well? Is law only for those who voted to elect these Supreme parliamentarians?
Nonsense! It is always the Judiciary that holds high esteem and superiority status in the "democratic" countries.
It is quite natural for politicians to be annoyed with the judiciary. Happens in the the US, UK, and any other country with a free judiciary. I REMEMBER once David Blunkett, the Home Secretary in the Uk railing at court judgements which went against his department's and parliament's policies. The Court of Human Rights in Europe has even the power to challenge laws passed by parliaments of individual States. The frustration of politicians and governments with respect to Judges who 'hinder' them is nothing new, yet they mutter and mumble and grudgingly have to accept the superior status of the judiciary. The blatant disregard and contempt that this Pakistani govt. has for the judiciary and court verdicts has not contemporary parallel. If not the courts, then who can stop excesses of the government and make sure that the Executive itself follows the constitution and obeys the laws of Parliament. Parliament cannot force a government to implement the laws it passes, only the judiciary can do so.
PPP has become used to inane statements. The judiciary, the executive and the legilsature are the three pillars of the state. None of these is superior to the other. Then how can the parliament be 'supreme?' Having three institutions with their well-defined functions ensures check and balance in society. In the current case, the friction between the SC and the government is not over who is supreme and who is not--that amounts to confusing the issue--but over the issue of corruption scams galore in the PPP government. Investigation of the Hajj scam is the bone of contention. The PPP government, is doing all it can to sabotage proper and fair investigation. They want weak and docile officers to investigate the issue so that they can extricate the influential elements who made billions from Hajis last year. The Supreme Court is right in this issue. PPP has no legs to stand on. They are morally and legally in the wrong. May God give them the strength to face the truth and do the job for which they have been elected--to solve the people's problems and uphold the constitution and the law, not promote corruption and try to save the corrupt from accountability!!
As pointed out, 'Parliament is not Supreme', the Constitution is.
Parliament cannot will nilly go around passing laws or 'executive orders' in violation of the rules and processes laid down in the Constitution.
If there is a disagreement over the interpretation of the constitution with respect to the powers of the Executive and certain 'laws passed by Parliament', then it is the courts that are the final arbiters of whether or not the actions of 'Parliament and/or the executive' are constitutional or not.
Parliament is not a 'dictatorship' that it can claim to lord over everything as 'supreme' - it must follow the constitution and it must follow the rulings of the judiciary in terms of interpreting the constitution.
In every democracy parliment is supreme. It makes and changes the laws including constitution. The role of SC is "only to interperate the constitution" not change it. Parliment can change the powers of any branch, should they desire? SC is only for hearing the appeals and not to act as trial court. That is the job of lower courts and HC.
But parliament is not court.
Parliament can not hear an appeal against any supreme court judgment.
But parliament is not a court. Parliament can not hear an appeal against a court judgement.
Constitution of Pakistan is Supreme.