The Supreme Court is continuously showing self-restraint in order to avoid confrontation between state organs despite the prime minister, the president and other government functionaries defying a number of the apex court judgements, but now it seems the court will not show further restraint for the sake of rule of law and supremacy of the constitution.
Over the last few years, the Supreme Court has ordered the federal government to remove contractual employees and those reemployed after retirement from service, numbering in the hundreds, but the prime minister did not obey the order in letter and spirit. In the Rs 9 billion Bank of Punjab loan scandal, the court ordered the appointment of erstwhile Anti-Narcotics Division secretary Tariq Khosa as head of the investigation team to probe the scam, but the federal government declined to obey the order.
In violation of court orders, Federal Investigation Agency (FIA) Director Hussain Asghar, who was probing the Haj scam, was transferred and appointed Gilgit-Baltistan Police inspector general. The court ordered the reinstatement of FIA Additional Director General Zafar Qureshi, who was probing the National Insurance Company Limited (NICL) scam, but the government disobeyed the order. Eventually, the court itself reinstated him via verbal orders.
Cabinet Secretary Rauf Chaudhry was similarly victimised by the prime minister for having implemented the court order to repost Zafar Qureshi to the FIA. FIA Director General Tehsin Anwar Shah was summoned by the court but on the behest of the government, he defied the court orders. Khosa, who was investigating the Rs 22 billion corruption scam in the Pakistan Steel Mills, was deliberately removed from his assignment even though the court had expressed its satisfaction with his progress. In the case of Riaz Lal Gee, a close friend of President Asif Ali Zardari, Interior Minister Rehman Malik was issued a contempt notice for defiance of court orders, which is still pending.
In May 2010, the Lahore High Court had dismissed an appeal against Malik’s conviction in two National Accountability Bureau (NAB) references, but President Zardari exercised his authority to grant him pardon. Upon the government’s constant defiance of the NRO verdict, the court on January 10 observed that the prime minister did not meet the criteria to be elected a member of parliament because he was not an honest person, having violated his oath. The court held that the federal government and NAB were not serious in implementing the NRO verdict at all, and were only interested in delaying and prolonging the matter on one pretext or another. The court pointed out that it could take six options against the willful disobedience of the government in implementing some parts of the NRO verdict and consequent directions.
After the continuous defiance by the government, the court has hinted that now it might exercise its powers to ensure implementation of its verdict. “When Article 189 of the constitution gives the decisions of the Supreme Court ‘binding’ effect and when Article 190 of the constitution commands in no uncertain terms that all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court, the constitution does not envision an executive professing only ‘respect’ towards the decisions of the Supreme Court but at the same time derisively or disdainfully paying little or no heed to implementation or execution of such decisions,” the court said. “Obedience to the command of a court, and that too of the apex court of the country, is not a game of chess or a game of hide and seek. It is, of course, a serious business and governance of the state and maintaining the constitutional balance and equilibrium cannot be allowed to be held hostage to political tomfoolery or shenanigans. Article 5 of the constitution declares in most unambiguous terms that loyalty to the state is the basic duty of every citizen and obedience to the constitution and law is the inviolable obligation of every citizen,” the court noted.
“We are conscious that the actions we propose to take are quite unpleasant but maintaining the necessary constitutional poise and balance is a part of our duties, particularly when we have made an oath before Allah Almighty to ‘preserve, protect and defend the constitution’ and to ‘in all circumstances do right to all manner of people, according to law, without fear or favour, affection or ill-will,” the court said further. The court pointed out that in an interview the president had categorically stated that under his co-chairmanship his political party has taken a political decision not to obey some parts of the judgement handed down by the court in the NRO case. It said even the prime minister and the law minister had been harping on the same theme for quite some time on various occasions through speeches made on the floors of the National Assembly and the Senate and also through print and electronic media. “Their conduct in the matter also goes a long way in confirming what they have been proclaiming,” the court said, adding that such an attitude, approach and conduct prima facie showed that the president, prime minister and law minister had allowed loyalty to a political party and its decisions to outweigh and outrun their loyalty to the State and their “inviolable obligation” to obey the constitution and all its commands.
