Constitutional crisis: Govt questions legitimacy of SC’s Balochistan ruling
An adamant federal government on Friday stood its ground in the face of a lingering constitutional void in Balochistan – and questioned the right of the apex court to term the provincial government a failure, or, for that matter, send the set-up packing through an order.
On Wednesday, the Supreme Court had questioned the Balochistan government’s constitutional status given the court’s interim order that held that the current set-up had failed in its primary constitutional duty – protecting the lives and property of its citizens – and hence had lost its authority to govern the province. In light of the ruling and remarks, the Balochistan government was said to be at the brink of dismissal – with the possibility of governor rule or some other drastic step being talked and speculated about.
But, on Friday, the federal government, in a written reply, questioned the legitimacy of the apex court’s ruling.
“It is only the federal government who is competent and has the requisite jurisdiction to decide what is in the best interest of the province,” said the reply submitted by Interior Secretary Khwaja Sadiq Akbar and read out by Attorney-General Irfan Qadir.
It also questioned if the court was stepping into the president’s jurisdiction.
“Question arises once the court pronounces the provincial government a failure and having lost its constitutional right to govern, does it mean that court is proclaiming an emergency as envisaged under Article 232 which is solely vested in the discretion and satisfaction of the president and does not rest with any other person or forum.
“Determination of the legitimacy of a provincial government is again a domain which has been clearly defined in articles 232 and 234 of the Constitution and by virtue of which, president is the sole authority to decide the mode and manner which shall be adopted to dispose of the issue pertaining to discharge of duty by a provincial government. This right is absolute and lies only with the president and nobody else.”
The two-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry, however, remained unimpressed.
The bench maintained the reply did not address the court’s concerns over the security situation in the restive province. Standing by its interim order of October 12, which said the provincial government had failed, the court granted the federal government more time to implement the six-point agenda presented by the latter to counter unrest.
Political considerations
The federal government argued that “political considerations should weigh heavily” before arriving at a decision regarding the disposal of a provincial government.
“Government would not like to taint or tarnish its fair image by invoking its powers to pack up a provincial government and send it home on a limited local issue of discontentment and dissatisfaction of some so called nationalist elements who hold divergent views best suited to their interests,” stated the written reply.
Interior Minister Rehman Malik blamed organisations such as the Balochistan Liberation Army and Jandullah for the deteriorating law and order situation, but the court shot back asking him to present evidence or reveal the name of single person arrested by the authorities in this regard.
The interior ministry’s reply cited the example of Indian states like Kashmir, East Punjab, Assam and Mizoram, which were plagued by armed insurgencies and partial breakdown of the government machinery for years.
“Still, democracy and successive elections afforded the people and the government a good chance to overcome their difficulties and defeat the militants with political process which was allowed to continue unhindered, undisturbed, compromised or violated.”
Unmoved, Justice Chaudhry still argued lack of good governance was the root of the issue. “Is there a bigger injustice than the chief minister’s own nephew being killed?”
The chief justice censured Malik for sitting in Islamabad thinking everything is fine.
Enter, Raisani
Balochistan Chief Minister Nawab Aslam Raisani made his appearance in the court flanked by coalition partners. And the government’s legal team put up an aggressive defence.
The attorney-general and advocate-general of Balochistan both argued the court’s order regarding the failure of the provincial government was incorrect.
Attorney-General Irfan Qadir maintained the court had “transgressed its limits.” Justice Chaudhry said the court had ordered provincial elections to improve the law and order situation. Advocate-General Amanullah Kanrani maintained elections were only two months away and the assemblies were about to complete their term for the first time.
The case has been adjourned till November 20.
Published in The Express Tribune, November 3rd, 2012.
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This is with reference to the report submitted before a two member bench of the apex court by Interior Ministry on 3 Nov 2012. The ministry while presenting its viewpoint regarding the messy situation in Balochistan made some startling and otiose observations, which straightaway negated Pakistan’s stand on the issue of Jammu and Kashmir. Citing Kashmir as one of the Union Territories (States) of India the Secretary Interior awfully and indeed willfully created a notion that Indian administered Kashmir is a legal entity of India. The statement by a top bureaucrat before the country’s top judge and that too in the presence of federal minister speaks volumes about the official’s naiveté regarding the issue. Making no difference between Kashmir and other states of India, the Secretary Interior KM Siddique’s statement as a matter of the fact strengthened Indian stance on the issue besides lending credence to its claims that Kashmir is an integral part of India. Mr. Siddique’s assertions, in other words, branded Kashmiris’ ongoing struggle nothing but an armed insurgency and in a way he justified India’s military aggression intended to suppress peoples’ peaceful movement in Kashmir. I wonder, this gentleman, elevated to such an important position, does not know; (a) That Kashmir is internationally recognized disputed territory (b) that regarding elections in Jammu and Kashmir the world body (UN) had categorically stated that elections were not a substitute to Kashmiris’ right to self-determination. (c) That India and Pakistan fought several wars on this issue. (d) That Pakistan supports Kashmiris’ struggle for right to self-determination. (e) That Pakistan seeks a peaceful solution of the Kashmir dispute in line with the relevant UN resolutions. And if the interior ministry official is not aware of the historical background of Kashmir issue then I’m sorry to say that he is not worthy of such a prestigious and sensible post. If a statement on this very sensitive subject would have come from an Indian official, they might have fired him straight away. Any ways this is our beloved country where every thing is possible except accountability. I hope the government and the higher authorities at the helm of affairs would take serious notice of this incident thereby clarifying their position on this issue of vital national interest. A show cause notice must be served to the Secretary Interior for committing this huge blunder, which had unluckily projected a very poor image of the country’s intelligentsia besides denting the sentiments of millions of Kashmiris who have been struggling for their basic right guaranteed to them by the international community and the leadership of the respective countries.
Nisar Ahmed Thakur Muzaffarabad AJK
The CJ is pushing for unconstitutional removal of the Balochistan government. This will srengthen the cause of insurgents and swell their ranks.
The stance taken by the Attorney General is fully in accordance with the Constitution, the Constitution does not empower the Supreme Court to pack the Provincial Government itself, or oder the Federal Government to do it. As per the Constitution a provincial chief minister can resign him self or he can be removed by passing a vote of no confidence in accordance with the procedure laid down in Article 136 of the constitution. The President may impose emergency, if a resolution has been passed by a Provincial Assembly to the effect that the provincial government has become unable to control the affairs of the Province due to internal disturbances or otherwise. If the President acts on his own, the proclamation of Emergency shall be placed before both the Houses of Parliament for approval within ten days. The Federal government may assume to itself, or direct the Governor of the Province to assume on behalf of the Federal government all or any of the functions of the provincial Government. No role in this behalf, has been attributed to the Supreme Court even in the name sake.