The Supreme Courts unanimous verdict last Thursday on one provision of the controversial 18th Amendment may have helped the government to return for the time being from the brink of the rock but not from the precipice of a larger politico-judicial crisis over the still unimplemented verdict of the apex court on the notorious NRO.
The 17-member full bench of the Supreme Court has referred Article 175-A back to the parliament for a review of the new procedure of appointing judges of the superior courts is a clear indication of the re-incarnated Judiciarys resolve to uphold supremacy of the constitution and the rule of law as well as sanctity of the principle of separation of powers in the three branches of government as enunciated in the 1973 Constitution.
These are the norms in every civilised society but they have traditionally been alien to our culture. The Supreme Court ruling is a timely reminder to the other two branches of our government that it is time we also joined the ranks of civilised world by upholding supremacy of the constitution and the rule of law as well as sanctity of the principle of separation of powers between the legislature, executive and the judiciary;
The Supreme Courts October 21 ruling was in response to numerous petitions by a cross section of Pakistans civil society including the countrys bar associations challenging the provisions of the 18th Amendment concerning the appointment of superior courts judges through a lopsidedly structured judicial commission which were tantamount to blatant infringement of the independence of judiciary.
In a constructive overture, the Supreme Court upheld the appointments of judges under the new procedure already made or likely to be made till such time as the disputed aspects of Article 175-A were reviewed and pending petitions finally settled. In doing so, the Court said we are mindful of the oath of office, its constraints and the fundamental principles which underpin judicial independence in the constitutional scheme envisaged by the founding fathers.
The ruling acknowledged the Constitution which envisages a structure of governance based on trichotomy of powers in terms of which the functions of each organ have been constitutionally delineated keeping in view the seminal concept of separation of powers. It emphasised that the judges may not be supreme in political matters but constitutionally had their own unassailable obligation to do right to all manner of people according to law, without fear or favour, affection or ill-will.
Through this ruling, the Court has indeed made a gracious gesture to the lawmakers that it was not striking down the disputed legislation and challenging their attempted judicial trespass and instead gave them an opportunity to bring Article 175-A in line with the constitutionally anointed concept of independence of judiciary. It also flagged the unmistakable reality that sovereignty of parliament and independence of judiciary were mutually reinforcing and complementary, and not competitive or incongruent of each other.
In doing so, the Court also expressed its anxiety over the gravity of the current national scene by registering a note of caution that we as a nation are passing through testing times facing multi-dimensional challenges which could be best addressed only through measures and methods where societal and collective considerations are the moving and driving force. Woefully, these measures and methods are alien to our culture where societal and collective considerations always lose out to the praetorian interests of the very privileged few.
For any state in the contemporary world, its Constitution is its solemn and inviolable “social contract” which guarantees fundamental freedoms and basic rights of its citizens, and besides delineating the powers and duties of the government, solemnly establishes the legal basis for its institutional structure. In our state, unfortunately, constitutions have been so randomly trampled and disfigured that there is no institutional integrity left to inspire any hope or confidence among the people.
In a parliamentary democracy, the sovereign power rests with the people, for they alone are in possession of an inalienable will. In our case, the people find their will being violated willfully by their elected leaders with utter insensitivity. With an elected government, a sovereign parliament and a democratically chosen president, there should have been no reason for the people to suffer continued deprivation and hardships or even a sense of lawlessness. But this happens when the will of the willful ruler, not constitution, becomes the basis of the rule of law.
Neither parliament nor the elected government inspires any hope or confidence among the people. They are beginning to wonder whether they made the right choice in the last elections. They are facing difficulties that they had never experienced before, including unabated gas and power shortages, serious law-and-order situation, unbearable VIP culture and endemic corruption. Just today, we expect Transparency Internationals this years Corruption Perception Index (CPI) to show our new higher ranking among worlds most corrupt countries.
Our credibility as a state has suffered unprecedented erosion in the last couple of years. No one trusts our rulers with a penny in cash. Even the myth of Friends of Democratic Pakistan has not worked. At their recent meeting in Brussels for mobilisation of flood relief resources, our friends told us to undertake administrative and institutional reforms to ensure transparency and accountability of aid utilization. International bodies have also been urging the need for good governance and transparent administration. These are fair demands. We must put our house in order.
Prime Minister Yousaf Raza Gilanis responsibility does not end simply by acclaiming the Supreme Court ruling on the 18th Amendment as a positive development which in his opinion has further enhanced respect for the parliament. Real respect for the parliament will increase only when the legislators undo the wrongs identified by the countrys legal fraternity in Article 175-A to bring it in consonance with the cardinal principles of independence of judiciary and separation of powers as enshrined in the Constitution
Prime Minister Gilani should be worried more about his own political cachet which is constantly suffering erosion because of his inconsequential role in running the government that he heads as the countrys elected chief executive. His respect and standing will increase only if he were to stand up to his obligations under the Constitution.
Corruption is his biggest challenge. He presides over a system rotten to the core with ingrained culture of political opportunism and ineptitude leaving the people at their own mercy. Ironically, while the common man is suffering the worst-ever hardship, the elite looters, plunderers, hoarders, profiteers, and money-launderers could not have a safer haven anywhere else in the world. No other country is familiar with the normatic practice of forgiving as a matter of rule the privileged loan-defaulters and highly-placed usurpers of state resources.
Against this dismal backdrop, the NRO case is still hanging out there. The Supreme Court is constitutionally bound to do right to all manner of people according to law, without fear or favour, affection or ill-will. The clock is ticking. There can be no reprieve from law, nor any immunity to anyone for acts committed before entering into a privileged office. Let us avert a political precipice before it is too late.
The writer is a former foreign secretary.
