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The arrival of spring has reopened all the accounts


It is hard to fix the bungled up things. When extra-constitutional arrangements are made they create such convolutions which are difficult to untangle through legal discourses. They can best be resolved through a combination of the vision of the elected representatives and the uninterrupted continuity of the political process. When the matters take an ugly turn, the ball is again thrown back in the court of the people. But the question is, can one or two elections and the governments with truncated tenure come up to the expectations of the people? Surely, election means complete power and independence of action. In our country the elected representatives have rarely been allowed freedom of action. Those were indeed towering personalities who made their way through this maze to serve the masses and are now alive in their graves.

After the martyrdom of Shaheed Muhtarma Benazir Bhutto when the people of Pakistan mandated the Shaheed Zulfiqar Ali Bhutto’s PPP to serve them, the politicians, the people with leadership experience, those who suffered the rigours of imprisonment and exile and a number of diehard PPP workers who had faced trials in the courts and media, responded to their call under the leadership of President Asif Ali Zardari. The vision of the leadership assumes greater significance in the times of adversity. The leadership of PPP in deference to the mandate of the people adopted a sagacious but arduous path of rectifying the maladies through a broader national consensus. Through eighteenth amendment the aberrations introduced in the constitution by two dictators were removed. An extensive process of sifting the text of the constitution was undertaken and a decisive advancement was made in strengthening the federal units in line with the aspirations of the people. The election commission was given full autonomy and initial steps were taken to ensure transparent appointment of the judges. The constitution can be amended and recast with two third majority, but President Asif Ali Zardari following the footstep of Shaheed Zulfiqar Ali Bhutto, accomplished this historic task with the support of all the parties. Perhaps it is a rare phenomenon in the history of democracy that a political party not having simple majority in both the houses has introduced such far- reaching amendments in the constitution. Such achievements are only possible through exalted vision and sincerity of purpose.

PPP has always espoused the sovereignty and ascendancy of the people. It is our perennial slogan that people are the source of all power. Bhutto Shaheed, Shaheed Bibi and workers of PPP have sacrificed their lives and endured hardships of incarceration to uphold people’s right to rule. If today anybody dares to snatch this right from the people and using some self created logic tries to bestow it on any other entity or person, the people of Pakistan will fiercely resist the effort. A few days ago, President Asif Ali Zardari while enumerating the impediments in the way of democratic journey again emphasized the need for patience, tolerance and mutual respect. He said the next step in the journey of democracy is to hold transparent elections and transferring power to the new elected government and the Pakistani nation has taken long strides in this direction. He said some people still believed that the parliament was under attack. But during the transfer of power from non-elected entities to the elected institutions some amount of pain is inevitable. The President said that it were the last pangs of the dying system.

In the backdrop of this scenario some statements were made on 6th November which are being given lot of importance by the media. The army chief addressing the military officers urged the state institutions to respect the democratic values and accepted the fact that mistakes have been made by all of us in the past and now we are engaged in the process of rectifying them. Since some of the generals were involved in disrupting the democratic process in the past, this statement of the COAS is a pleasant turning point because we can move forward by learning from our past mistakes. He also said that no individual or institution has the right to determine the national interest without creating consensus of opinion. It is a matter of principle that no person or institution is the ultimate authority. This prerogative lies with the people. The people and their elected representatives are the highest authority. The constitution has strictly defined the roles of all the institutions. The nation decides who will determine the national interest. It then sends its representatives in the parliament who run the affairs of the state. The judiciary has a separate role. It has no concern with matters pertaining to governance. Similarly the military and civil bureaucracy works under the elected government. They discharge their duties in line with the priorities fixed by the government and are answerable to it for their actions. The government is answerable to the people. In spite of these irrefutable realities the court issued instructions for the appointments of the heads of different departments and transfers of the bureaucrats. We must now understand that nobody has self-arrogated authority. All are answerable to the people who are the real rulers. Through their votes they can send the governments home or re-elect them. The ultimate decision rests with them.

In the statement, reference has also been made of separating the acts of individuals from the institutions, strengthening of institutions, supremacy of law and institutions working within the ambit of the constitution. Some times ago President Zardari had said that PPP was aware of the distinction between individuals and institutions. The founding father of PPP was martyred through a judicial verdict but we have not adopted the course of revenge, whereas those who sing praises for the court destroyed its sanctity. We had serious reservations over the deposition of Prime Minister Yousaf Raza Gilani but we implemented the decision. The PPP has repeatedly urged the need for legislature, executive and judiciary to work within their own demarcated territory. But we have seen people crossing the red-line off and on.

We were subjected to undeserved opprobrium from different quarters. Even those elements issued statements who are prohibited from going to the media. We tolerated all this. Several efforts were also made to use constitution and parliament against each other but these efforts of the dying system were reduced to a whimper by the acumen of the parliament and the political leadership.

Some newspapers through their threatening headlines based on the arguments in the court attempted to give the impression that the Supreme Court was the ultimate decision making forum. It was the most simplistic disposition. Political sciences, philosophy and the constitution of Pakistan are in disagreement with this thinking. The constitution and philosophy do not recognize Supreme Court as an institution but a part of an institution known as judiciary having several other courts which do not work under the Supreme Court. Legislature, executive and judiciary are independent in their own sphere of responsibility and each of them has a separate final authority. The President is above all these institutions in whose name all the high profile appointment are made. The President is also the ultimate authority with regard to reduce the punishments awarded by any court. It is his discretionary power and no court can give any further verdict on it. So the buck stops with the President and not the Supreme Court. It may be remembered that in parliamentary democracy, the President exercises his powers in consultation with the Prime Minister. In that respect, the Prime Minister who is head of the executive and leader of the house in the parliament, has the power to take a final decision in any matter.
But the Prime Minister is appointed by the parliament and can maintain his position with
the support of the majority of its members, because only the people have the right to rule
and it is they who constitute the parliament. The rest of the institutions are created by the
parliament and therefore it is above all of them. The ultimate decision comes from there.

No court enjoys ascendancy over all other institutions because it is not answerable to the people. The institution which is answerable to the people is Supreme and that status is only enjoyed by the parliament. Judiciary has different courts and the biggest court is the Supreme Court but it is wrong to say that all the final decision are taken by the Supreme Court. According to the laws of the country each court is empowered to make certain decisions and its parameters are clearly defined. No court can interfere in the spheres of powers of the other court. The truth is that in a number of cases, the final decisions are taken outside the glare of the Supreme Court. We respect all these courts. Similarly from village registrar ( Patwari) to Secretary there are a number of final authorities with regard to different matters. Rule of law will be established when the authority of a policeman controlling the traffic and the Prime Minister are given equal respect. No personal ego is greater than the national ego.

According to law and constitution, neither any court is under the jurisdiction of the Supreme Court nor judges of any court are under any other judge or the Chief Justice. There is no concept of chain of command in the Judiciary. So the statement made by the former Chief Justice of Lahore High Court in a political gathering has no legal status. All judges are independent in their judicial functions, whereas all the civil and military authorities work under a political dispensation headed by the Prime Minister. The correct
position is that the constitution is the supreme law of the land; Supreme Court is the highest court and amongst the legislature, judiciary and executive, the parliament is the supreme organ of the state because it represents the people and is answerable to them. All
institutions derive their powers from the parliament whereas the executive emerges from
its womb. The parliament draws up the constitution and can make amendments in it. No court, no matter what it does, can add even a dot in it. Years may go by but it cannot even
replace the alphabet O with U in the word Balochistan. Setting up courts and conferring power on them, preparing budgets, determining remunerations of the judges, enhancing
pensions and allocating funds for running day to day affairs of the government is only within the powers of the parliament. Only parliament has been deciding about the right or
wrong use of these expenditures. It is however a different matter that for the last six years the accounts have not been presented in the Public Accounts Committee of the parliament. But how long? Ultimately every body will have to traverse through the accountability process determined by the democratic institutions. If not today then tomorrow. In the words of Muneer Niazi” Tabdeelion key din hein zamaney mane Muneer” ( O Muneer it is a time of changes in the world). The defence budget has been presented in the parliament and ultimately the accounts of the Supreme Court will also come to the Public Accounts Committee.

There has been a talk of safeguarding the constitution but the constitution is drawn up by the people through their elected representatives, therefore, only they can safeguard it. The judiciary cannot make the constitution and the laws. It neither has the responsibility to protect it. The judiciary is only bound to dispense justice according to the constitution and law in a situation where it is called upon for arbitration. It is utmost essential for an arbitrator to maintain impartiality. The International Judicial Commission in its report for September 2011 has pointed out that the Supreme Court of Pakistan is transgressing its limits in regards to its Suo Moto jurisdiction which is harming the process of justice. An eminent member of the Commission Judge Graham Lewing observed that due to the institution of cases by the Supreme Court using its Suo Moto powers and then hearing those cases itself, the right of appeal of the petitioners is being undermined. The authenticated legal experts of Pakistan also accept the right of appeal.

The Commission also expressed concern over corruption in the courts and said it was vitiating the trust of the people in them. It further said that taking notice of the government initiatives by the court could be beneficial in certain cases. Nevertheless the court must avoid to interfere in everything because it can be damaging instead of ensuring success of justice. Therefore the court must exhibit restraint. A representative body of the lawyers has endorsed the observations of the Commission report and urged the Supreme Court to be careful. They have said that the Commission has rightly advised
the Supreme Court not to tresspass into the affairs of the executive because the countries
are run according to a system under which all the institutions have their own limits. They
also expressed disapproval of the SC interference in the lower courts and advised it to avoid it.

The power to interpret the constitution is not absolute. No court can go beyond the unambiguous clauses of the constitution. Similarly the case law, in vogue for years, also sets limits. The interpretation of the constitution is not a curricular or extra-curricular activity of the courts that they should start interpreting it on their own and change the real text. Nobody has bestowed this power on the court. The court has the power of interpreting the constitution only when a constitutional body or person needs an interpretation of any clause of the constitution and approaches the court for help. Otherwise as it is said—to make the people understand— the justice is blind. The court cannot see any thing itself except what is shown to it. Last year a judge in a Western country was removed from the jury because he had come after doing research about the case on the internet. It was concluded that he had already made up his mind and his mind was not in a position to assimilate new facts. But when the judges start reading newspapers, meeting the columnists, watching the talk shows and indulge in similar activities, they will surely lose their impartiality. Because, apart from dissemination of news through the newspapers some people are also engaged in engineering information to
change the landscape of realities according to their own perceptions and faith. If a judge listens to them he might be influenced by their opinion in which case there is a likelihood
of their impartiality being affected. If you ask a reporter of a bureaucrat recently turned Mullah, what is obscenity, the answer will be typical of the custodian of a mosque. Creating a balance in opinion on policy matters is the responsibility of the political institutions and not the courts. Do we have to listen to the 180 million people or a few individuals? This is a decision to be made by the authority which has to go back to the people. The court should not have any concern with it.

Emphasis has also been given on closing the rumour mill. It has been observed that some journalists and anchor persons present their own mental contrivances as news, then make it a subject of their editorials and hold talk shows on them in the evening. Specially an editor of a newspaper sitting in USA churns out news based on his whims and wishes and then indulges in offering comments on those fabrications.This behaviour must be discouraged and checked. Similarly the political personalities are ridiculed and allegations hurled on them openly. Though there are defamation and libel laws in existence but if any person files a case against irresponsible reporting or false allegations,
the decision is not delivered for years with the result that the law loses its efficacy. Human Rights Watch report for 2011 confesses that the political leadership of Pakistan takes the flak directed at it cheerfully and the media enjoys complete freedom. However the report points out that the court has considerably succeeded in gagging the media and secured its prestige through a court decision. But no preventive measures have been taken
to safeguard the reputation of the elected representatives, representative institutions and national security agencies against the indiscretions of the anchor persons and the clucky-marginal notes of the newspapers based on comments made about political personalities
in the court. Even the masses do not have this facility because decisions are not delivered
and their reputation remains hanging in balance.

It has also been said in the press release that all the institutions want to do something but haste can bring both positive and negative implications. Otherwise, the truth is that unnecessary haste generates negative consequences. The state affairs can be handled and resolved through thoughtful actions rather than haste. Issues cannot be resolved by someone sitting till the evening. The uncalled for alacrities can be harmful. We must ponder the question, aren’t we harming the national interest through our limited perceptions? Rule of law should not mean rending the things as under.

A Prime Minister is sent home, the second is sent warrants on the morning of elections like giving a guilty verdict before even the allegation is proved right and the third is under the scepter of allegations. One day the newspapers come up with roaring headlines that the provincial government has lost the authority to govern and the next day it is declared that even the federal government has lost its writ. But since when the Supreme Court has the authority to decide it? It is the prerogative of the people. As is said in the folk wisdom, the horse is ready and so is the field. The field is being readied for the contest. The elections are going to take place. The President has appointed such an honourable person as the Chief Election Commissioner through national consensus, who has never taken an oath under PCO, has not been subservient to any dictator and not authorized any non-elected person to amend the constitution. Take it easy my Lord, the time for taking decisions is already determined. Elections will be held and the people will
tell who was doing good governance and whose good governance was only a fake enactment. People are the best judge and we should wait for their verdict. It is not for the
court to decide on good governance. This has to be decided by the people. Every institution has its own responsibilities. And the job is well done by those whose responsibility is it and if someone else tries to do it, he will make a mess of it. The court
will not decide every thing. Gone are the days when democratic governments were sent
packing on the pretext of good governance and six to seven judges would decide what was good for the people. Now a lot of water has flown under the bridge and a lot of blood
has also been shed. Now the people will not allow anybody to tamper with the constitution.

It is not fair to continue blaming the elected parliament, governments and the institutions. A suggestion was preferred that FC may be withdrawn and sometimes it was said that the police may also be relieved of its duties. If all of them are removed then who will take their place and maintain law and order my brother? One morning on the basis of a news item in the newspaper it is said that the Taliban have arrived and should be arrested. Have the Taliban arrived only yesterday and will they welcome you when you go to arrest them? It requires consensus and planning. The terrorists are even caught but they are released. It is said that the prosecution had a weak case and could not prove it. The prosecution had requested the court that the son of the Syed was not guilty but he was sent home. If the court can send a Prime Minister home against the will of the prosecution, then which holier place (Mecca) the terrorists have come from?

The constitution has delineated the roles of all the institutions. Who will work where and how the Police will conduct itself, how the crimes can be controlled, on what rates the sugar will be sold and how the flow of traffic can be made hazardless. Like all the civilized nations the people of Pakistan appoint the federal and provincial administrations and if they do not perform well they are rejected by the people. If the court starts deciding these issues it will constitute a breach of the constitution. This will harm the people instead of serving their cause. It does not add to the prestige of the court and it also becomes controversial. As a forum for hearing complaints against orders of the administration, it is essential to separate the judiciary from the executive. Democratic states achieve success through the principle of tri-chotomy of powers. According to the collective wisdom of humanity, the purpose of keeping judiciary away from administrative affairs is that the adjudicator between the parties should be acceptable to all of them. Whereas in the administrative affairs there are certain issues where one option is preferred over the other. These decisions can be wrong and the authorities making the decision are likely to come under criticism. That is why the judiciary is protected from it. The executive is elected and dismissed by the people. The people do not have the authority to dismiss a judge.

The right to rule belongs to the people and they or the parliament that they elect are the final authority in this regard. Whether a government can deliver or not is to be decided by the people and not the court. The constitution has prescribed a period after which a reference to the people is mandatory. The court has no concern with it. Any judge has the right to differ with a policy or decision and express his opinion but for that he will have to wait for the next election. And mind you, one man has one vote in the elections irrespective of the position he holds. How did the government perform, is decided by the people not the judges. In the end let me point out a matter of principle that the judges ought to speak less so that less is said about them. There are many other professions for clucking of the tongue. The persons opting to become judges have to render this sacrifice. It is good for judges not to speak much, if they do, they will (have
to) hear much as well.

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