The dust finally settles

Judicial restraint and the government

In the judicial history, no case or decision of the SC has caused so much commotion and controversy as did the NRO verdict. While the court persisted with its position that in light of the decision, the government was bound to write to the Swiss authorities for the withdrawal of the letter written by the former attorney general, the government took firm position that the order could not be implemented as the president enjoyed immunity from prosecution in any court during his incumbency and the writing of letter would itself constitute a violation of the constitution.

Bothe sides remained adamant on the position taken by them for nearly three years and many heads rolled in the process. The legal and constitutional experts were also divided on the issue and preferred arguments in favor of the positions taken by both sides. Those endorsing the stance taken by the court, argued that the decisions of the apex courts – whether wrong or right – become binding after attaining finality and therefore the government ought to implement it. The others argued that the court before giving the decision on the case should have kept in mind article 248(2) that granted blanket immunity to the president from prosecution. The dismissal of the former prime minister by the court also generated considerable controversy and many constitutional experts within and outside the country criticized the SC decision, saying that the court had failed to exercise judicial restraint and opted for an extreme measure.

The stalemate looked like aggravating in view of the pro-active and belligerent disposition of the court and its repeated indications that the second prime minister would also meet the same fate if he failed to implement para 178 of the NRO decision. The government was faced with a situation where the options available to it were equally compelling from the legal and constitutional perspective. It is heartening to note that with a view to break the deadlock in the bigger national interest it decided to write the letter. The SC, after some jitters on the contents of the letter, has closed this controversial chapter by approving it. The danger of much feared clash of institutions has been averted and the dust has finally started settling.

The settlement of this contentious issue could not have been possible without flexibility on both sides and it seems that the court for the first time has acted in conformity with the concept of judicial restraint and deserves to be complimented. The government, honestly speaking, has also shown tremendous political sagacity and pragmatism by backing off from its earlier stance. In fact it has been showing similar kind of respect to the other court decisions where the court, seemingly, trespassed into the domain of the constitutional powers of the executive or the parliament to dilute the ambience of confrontation.

The legal and constitutional experts believed that the SC decision in the appointment of chairman NAB and judicial appointments cases lacked legal and constitutional basis. The judicial reasoning in both cases was wanting to say the least. The SC judges in both these cases did not abide by the doctrine of limited judicial authority. In the former case, the SC declared the appointment of Deedar Shah as ultra vires because as contended by the petitioner, the president did not consult the opposition leader before the appointment as provided in the relevant rules. Giving their judicial reasoning, the judges pointed out that NAB law allowed chairman to serve only one term and prohibited grant of any extension. It further said that as Deedar Shah had already served as chairman NAB, he was now barred from being re-appointed. That is a circular reasoning. If Justice Shah was never appointed legally how can his work at NAB be counted as a term in office disabling him from ever being appointed again? The decision also said that the CJ must be consulted before appointing an individual as chairman NAB. The agency is an executive entity under the control of the prime minister. There is absolutely no legal and constitutional reason for the chief justice to get involved in such issues that fall within the jurisdiction of the executive as enunciated in the relevant statue.

The Supreme Court also decided to hear challenges against the 18th Amendment in regards to appointment of judges, notwithstanding the fact that article 239(5) unequivocally said: “No amendment of the constitution shall be called in question in any court on any ground whatsoever”. The court through an interim order forced the parliament to re-amend the constitution to the liking of the court. The government obliged by bringing in the nineteenth amendment to accommodate the recommendations of the court in the hope that the gesture might prompt the court to back off from its stance of exercising powers over issues where its jurisdiction has been explicitly ousted. In both the above cases the judges of the SC assumed the role of legislators which they are not. They can interpret the law and say what the law is and not what the law should be. That is the prerogative of the executive and the parliament which are responsible for initiating and passing any law respectively.

The judiciary as a custodian of the constitution and protector of the fundamental rights of the people is not only considered as the most sanctimonious organ of the state machinery but also a foundation on which the civilizations are built. That is why the cause of judicial independence is ungrudgingly espoused by all the nations in their constitutions. The concept of independence of judiciary, however, does not imply absolute and unbridled freedom and trespassing into the domain of other institutions of the state. The cause of independence of judiciary and justice is best served when the judiciary abides by the tri-chotomy of powers enshrined in the constitution. Any deviation from it would be a travesty of justice, bound to create harmful consequences for the system of governance in the country.

Now that a better sense has ultimately prevailed, one would expect the government to continue showing similar respect to the court decisions in the future and the judiciary to realize the fact that it does not have unlimited powers. It is bound to adhere to the internationally recognized principles of judicial restraint and the provisions of constitution that reflects the will of the people. The country will be better off if all the institutions stick to their constitutional roles.