Looming confrontation: Govt challenges Balochistan case verdict

Contends SC’s Oct 12 judgment amounts to revival of article used to dissolve assemblies.

ISLAMABAD:

In a move that could potentially trigger yet another bruising stand-off between the executive and the judiciary, the federation has challenged the Supreme Court’s decision regarding Balochistan’s law and order situation.

Asking for a review of its decision, the federation has asserted that the apex court order was in violation of the Constitution and actually a revival of the controversial Article 58 (2) B used by dictators to dissolve assemblies in the past.

Filed by Attorney General Irfan Qadir on Thursday, the federation challenged the apex court’s decision of October 12, just three days ahead of losing the right to file a review petition as per rules of the apex court.

In its verdict, the Supreme Court had questioned the constitutional status of the Balochistan government and had observed in its interim order that the provincial government had lost the authority to govern the province.

The federation contended in its review petition that Article 58-2B was dissolved by parliament through the 18th Constitutional Amendment. The review petition also stated that the Supreme Court’s verdict was a violation of Article 112 of the Constitution of Pakistan, according to which only the provincial government can advise the concerned governor to either impose an emergency or a Governor’s Rule — if such a situation arises.

“Any such type of declaratory order or painting a picture is very dangerous for the country. It is a licence or invitation to unseen avaricious forces,” agued the federation in its petition.

“The apex court has hinted at Article 172(2) of the Constitution. In fact the minerals of Balochistan have tempted the big powers... and the federal government is very prudently warding off the knave,” the petition reads.

“It would be extremely relevant to point out that it is not the function of the superior courts of the country to gauge the performance of a political government and that too while dealing with political questions.”

The petition further states that the judges of the superior courts, by virtue of the oath they read with their code of conduct, were under a constitutional obligation not to enter into political questions even if such questions involved questions of law.

“Getting involved in political questions constitutes misconduct under Article 5 of the Code of Conduct of Superior Court Judges issued after the restoration of the present chief justice,” the federation maintained.

“As such the aforesaid findings of this court are without jurisdiction and the same need to be reviewed keeping in view the Constitution, law and principles of good conscience and fair play,” the petitioners argued.

Heading a two-judge bench, Chief Justice Iftikhar Muhammad Chaudhry had sought a report from the federal government on the steps it had taken to implement the court’s October 12 order.

The order had stated that the Balochistan government had failed to maintain the law and order situation, and directed the federal government to stop being a silent spectator and adopt appropriate measures to protect the lives and properties of citizens.

The apex court had observed that the provincial government was violating the Constitution despite its October 12 order in the case. The chief justice had also asked how the government of Balochistan was still spending funds from the national exchequer despite the court’s interim order.

“The court has no constitutional mandate to arrogate such powers to itself. In fact it is for parliament or the federal government to decide whether a situation has arisen in which the government of the federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. It is also relevant to mention that issues regarding the failure of any government as a whole with regard to its constitutional obligations qua governance are not justifiable in terms of the jurisdiction vesting in this court under Article 175 of the Constitution,” the petition stated.


Published in The Express Tribune, November 9^th, 2012.