The executive-judiciary conflict | Pakistan Today

The executive-judiciary conflict

Looking at the dynamics of the standoff

Nobody was surprised when, on August 3, 2012, the Supreme Court of Pakistan declared the new contempt of court law as unconstitutional. Such a judgment was expected in view of the comments the judges in the course of the court proceedings. The Chief Justice had categorically said in his speeches outside the court that he did not recognize the principle of supremacy of the parliament and the Supreme Court had all power to declare any law or action of the government as illegal if it conflicted with the provisions of the constitution as interpreted by the judges.

It is understandable that the Supreme Court has turned down the new contempt of court law because this law negated the Supreme Court’s current effort to establish its commanding role in the political system. In the presence of this contempt of court law, the Supreme Court could not take any action against the new prime minister or any other official with reference to performance of official duties.

Now, as the contempt of court law is knocked out, the stage is set for the Supreme Court to disqualify the second and the current prime minister for not writing a letter to the Swiss authorities for reopening of money laundering cases against the sitting President Asif Ali Zardari.

If the directing principle being trumpeted by the pro-current judicial activism is that nobody can be immune from contempt of court, there may be another crisis in the offing. The Lahore High Court has already issued a notice to President Asif Ali Zardari to comply with its order of not combing the office of President with the party leadership. If President Zardari ignores this, will the Lahore High Court issue him a contempt notice, by passing the presidential immunity given in the constitution in the tradition of the Supreme Court.

It would be unfortunate if the current prime minister is also disqualified and a contempt notice is issued to the president. These actions would be an extremely destabilizing development, especially if the PPP-led federal coalition decides to appoint a new prime minister who also refuses to write the letter. Will the Supreme Court then disqualify him?

The politically active circles and lawyers are divided on the expansion of the domain of authority of the Supreme Court under the pretext of judicial activism. One argument is what can be described as the pure and simple view of what is happening. The argument emphasizes the Supreme Court’s recognized power of interpretation of the constitution and that if the prime minister does not respect the courts nobody would do that? The ambiguous principle of equality of all is also emphasized, although absolute equality is not found in any political system.

The other argument in favor of interventionist Supreme Court is based on the partisan interests of political and societal groups. All those opposed to the PPP and its allies support the Supreme Court’s pressure on the federal government. They would not mind if the Supreme Court or the military remove the federal government.

The pure and simple approach would have been relevant if it was a single issue of complying with the Supreme Court order. The prime minister’s disqualification issue is a part of the overall disposition of the Supreme Court to expand its domain of authority after the Chief Justice and other judges were restored by the PPP-led coalition government with reluctance in 2009. It is known to all that had there been no pressure from the opposition and the army chief, the PPP-led federal government might not have restored the Chief Justice.

Since his return to the court the Chief Justice has been consistently using judicial activism to expand the domain of authority of the Supreme Court. The major target of this stride is the PPP-led federal government and its officials. By now, what we are witnessing in Pakistan is an institutional clash between the federal executive and the superior judiciary (the Supreme Court and the provincial High Courts, especially the Punjab High Court). The Supreme Court is exercising some executive power by reprimanding, removing and transferring officials, and giving judgments on prices of some consumer goods. It removed Prime Minister Yousaf Raza Gilani by disqualifying him as the member of the National Assembly. The power of disqualification of a member of parliament is traditionally exercised by the Election Commission of Pakistan.

There is another dimension to the current political situation in Pakistan. We are witnessing another type of power struggle between the elected institutions and non-elected state institutions. In the past, this struggle was between the non-elected military and the elected civilian institutions.

Now, the non-elected Supreme Court is endeavoring to expand its domain at the expense of the elected parliament and the elected executive. Such an effort can strengthen the position of the Supreme Court in the political system but it cannot rectify the ills of the political system or remove the so-called corrupt politicians from the political scene.

As the federal government is engaged in a desperate struggle for survival, it can hardly pay attention to acute internal economic and societal problems and external pressures. The Supreme Court pressure is likely to immobilize the federal government and the problems will fester while Pakistan moves towards an internal collapse.

Independent judiciary is important for democracy but it is not the only condition for the success of democracy. The judiciary should also be viewed as non-partisan and non-political. There is a need of institutional balance in Pakistan and the Supreme Court needs to show restraint to allow the elections to take place in due course.

If the confrontation is not moderated the political initiative will shift to the military. Currently, it is influencing state power management from the side lines but it has the capacity to move in if the confrontation between the Supreme Court and the federal government becomes unmanageable or the Supreme Court provides a legal cover to the military to move in for an “assigned task,” including the removal of the present PPP-led federal government.

All these moves will undermine the already under pressure democracy. The Supreme Court will also experience the loss of power if democracy decays. The military dominated or directed political order is based on the unity of command and does not allow autonomy for any institution, including the judiciary.

The writer is an independent political and defence analyst.



20 Comments

  1. KhalidSaeed said:

    Jihad shud continue against corrupt CJ whose son has address of CJ House Islamabad on his bank account for his fake IT company. Watch FaisalRazaAbdi press conference on YouTube with proofs and copies of CJ son bank transactions with address as CJ House Islamabad.

    • alikhan said:

      in addition, CJ released the hardcore criminals , terrorists which in turn killed thousands and bombed every city and town. What is this Justice ?

  2. Naeem said:

    Judiciary is out to harm democracy, parliament wants to dictate and assume power

  3. asim said:

    Basically there is no law in the country. Convicted & criminals are holding top positions this is a world record in the history of nations….Judiciary to save repute acting now but time has passed.

  4. Max said:

    It is a never ending saga and shows how immature is Pakistani ruling elites. No one tries to understand that two wrongs do not make a right. It is the sad plight of Milmlat-e-Khudda-dad.

  5. Ambion said:

    * just for being anti-ppp does not mean to give the whole system in the hands of a c*orrupt and ch*eap cj who is running a personal grudge for not restored by this govt instantly – this country has paid a heavy price ever since this *C*J has come on scene.

  6. Ambion said:

    Ch.Iftikhar is not a saint or an angle – he is a twice pco judge – how can he dictate and elected govt – he should be trialled under treason – he violated the constitution of pakistan under oath which he took on q*uran, he is a disgraced person, disgusting who support such a c*r*a*p.

  7. decay said:

    * twice pco judge how can he dictate and elected govt – he should be trialled under treason – he violated the constitution of pakistan under oath which he took on q*uran — he is a disgraced person disgusting who support such an idi*ot.

  8. Ambion said:

    Twice pc*o judge how can he dictate and elected govt – he should be trialled under treason – he violated the constitution of pakistan under oath which he took on q*uran — he is a disgraced person disgusting who support such an idi*ot.

  9. Ambion said:

    Tw*ice pco judge how can he dictate and elected PM – he should be grilled under tre*ason – he viola*ted the const*itution of pak*istan under oath which he took on q*ur*an — he is a disg*raced person disg*usting who sup*port such an idi*ot.

  10. Fed Up Baloch said:

    Respected Dr Rizvi sb. – The problem is that a common citizen like me would certainly not like to be in a situation where he is at the receiving end of a self serving supreme parliament’s shennanigans and have nowhere to go to for justice …

    … Hitler came in through democratic means and subverted democracy to put in place a fascist dictatorship … The Bolshevik minority subverted democracy and parliament to impose the Dictatorship of Proletariat …

    A dictatorship of Corrupt, Self Serving, Callous, Arrogant, Heartless, Crooked Tribal Chiefs, Landlords, Zamindars, and Businessmen … in disguise of democracy is not acceptable …

    A Parliament (even if coming in through purchased / coerced votes) has to clearly and unmistakably demonstrate through its conduct and performance that it can be respected and trusted … It just cannot make laws to whims, fancies and self serving interest and claim not to be accountable to justice …

    This is the time to stand by the principme of ‘equality before law’ … a sacred principle in any religion or social system … regardless of how imperfect the judges are …

    • Rasheed said:

      I think Rizvi sahib should show true picture of democracy. There is no system in pakistan No Islam , no democracy, no socialism , No communism…….
      Just ruling mafia in the cloak of democarcy.

  11. Muhammad said:

    This judicial disco dance must end for sanity to prevail

  12. Mohd Nisar said:

    somebody needs to kick the a*ss of Kana Dajjal

  13. Ajaz Haque said:

    Let us stay objective here. We have a President who has stolen hundreds of millions of dollars and criminal cases were proceeding against him until a deal with Musharraf and promulgation of NRO. The NRO was declared illegal, so it is a simple case of re-opening those cases.

    By not writing to Swiss authorities, Gilani and now Raja are in contempt of court, plain and simple. They either write the letter or go home. They are protecting a corrupt President because he has given them jobs as PM? Then face the consquence.

    Dr. Askari Rizvi's effort to make it a political war is nothing but nonesense.

    • shahid said:

      ALso his claim that:

      "The major target of this stride is the PPP-led federal government and its officials. "

      is false and with out any basis.The facts are quite the contrary and the SC has bent over backwards to provide the PPP every opportunity to defend themselves and state their case. Rizvi sahib should know this. It is reckless forhim to make such allegations. For all practical purposes this article could have been written by Faisal Raza Abidi.

  14. Fed Up Baloch said:

    RESPECTED Dr Rizvi sb. … A common citizen like me would not want to be at the wrong end (and at the mercy) of a parliament's self serving legislations with nowhere to turn for justice … The parliament (even if elected through coerced, purchased votes) needs to clearly and unmistakably demonstrate that their legislation is above board … before even making a claim of any supremacy … A parliament not accountable to law is not acceptable to ordinary citizens … Hitler came in through democratic means into Reichstag as a minority but subverted the parliament to create a fascist dictatorship; the Bolsheviks came into the Duma as a minority and subverted the parliament to create Dictatorship of the Proletariat … A dictatorship of venal, corrupt, self serving, heartless Tribal Chieftains, Landlords, Pirs, Gaddi Nashins, Robber Businessmen, Corrupt Mullas, Waderas is not acceptable … particularly when they want unfettered, unaccountable power… A Mimitary Dictatorship cannot be replaced with the Dictatorship of 1% … It is time stand up for the sacred principle of Equality before Law even if its implementation is led by a less than perfect C J …

  15. Khalq e Khuda said:

    Spot on Rizvi sahab! This corrupt CJ has become a liability for the country about time we get rid of him

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