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Najam Sethi
Sunday, February 20, 2011
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On the face of it, the Supreme Court seems to be gearing up to claim secession from the government and parliament of Pakistan. Is this what the framers of the Constitution had in mind when they sought an “independent” judiciary? The other question worth asking is: what is the intent and purpose of this drive for secession? Is it to hold the government and executive accountable for their sins of omission and commission – which are many – or is it to seize the reins of executive authority and thereby “set things right”? These are harsh questions. But we need to ask and answer them in the face of developing political instability and the spectre of a clash of institutions in Islamabad.

Four recent developments are noteworthy.

The Supreme Court has “suspended” a decision of the Parliamentary Committee to refuse extensions to four “additional” judges of the Lahore High Court that had been earlier approved by the Judicial Commission. Reason: the Parliamentary Committee was constitutionally obliged to record its reasons for rejecting the recommendations of the Judicial Commission. Is this “suspension” in order? If the Supreme Court had not so readily accepted a constitutional petition challenging the Parliamentary Committee’s decision and instead advised the attorney general to seek the reasons underlying the committee’s rejection as required by law, no one would have been alarmed. Instead, the stage seems to be set for a clash.

What if the objections of the Parliamentary Committee are not acceptable to the Supreme Court? The whole constitutional idea behind the institution of a Judicial Commission – dominated by the chief justice and his senior judge-colleagues – and the Parliamentary Committee – comprising an equal number of parliamentarians from the government and opposition – is to ensure a fair degree of neutral judicial oversight by a sovereign parliament. But if the Supreme Court is now going to sit in judgment over the Parliamentary Committee, the whole exercise of the 18th and 19th Amendment will have been in vain and the critics of the Supreme Court will be proven right in their prediction that the court is seeking “secession” rather than independence.

Then there is the question of the extension in service of bureaucrats after retirement with which the Supreme Court is “seized.” The Supreme Court has held that such contractual extensions are illegal. This has led to the wholesale sacking of many in the federal and provincial governments, thereby opening the route for deserving younger officers whose careers had stalled because their “seniors” were so adept at pulling strings and pushing sifarish to prolong their careers. The argument that some such officers were “indispensable” for their political masters because of their administrative experience and expertise has not washed with the Supreme Court.

However, a controversy has arisen because the Supreme Court is not seen to apply the same logical yardstick to the herd in its own courtroom. Why is the Supreme Court resorting to ad-hocism by seeking a second extension in service for Justice Khalilur Rehman Ramday and another for Justice Rehmat Hussain Jaffery? To be sure, Justice Ramday is reputed to be the right hand of the chief justice of Pakistan, having authored several important judgments. But, as the Supreme Court Bar Association says, it is time to end the culture of ad-hocism and double standards, regardless of the indispensability of individuals in the institutions of the state, especially in the judiciary whose judgments depend on the perception of fairness and impartiality for their credibility.

Critics say that if the workload in the Supreme Court has risen because of the special suo motu attention it is devoting to issues of bad governance and corruption by the executive, the proper way of going about addressing it would be to seek a suitable amendment to the Constitution and raise the number of judges from 17 to 19 or 20, or whatever. The Supreme Court’s reservations about the method of appointing judges as set out in the 18th Amendment were laid to rest by the 19th Amendment that was specifically passed by parliament for the purpose.

If the number of judges in the Supreme Court is an issue, it should have been raised at the proper time at the proper forum, rather than been thrust on an unsuspecting parliament. So it is right to ask why the judiciary is not applying this principle of no-extension to itself? Equally significantly, why is this principle not relevant to the army where the army chief, Gen Ashfaq Kayani, the director general of the ISI, Gen Ahmed Shuja Pasha, and the Defence Secretary, Gen Syed Athar Ali, are all on extensions?

The third controversial decision of the Supreme Court relates to the fate of the so-called PCO judges who took oath in November 2007 disregarding the judgment of Nov 3, 2007, by Justice Iftikhar Mohammad Chaudhry and six other fellow judges, striking down Gen Pervez Musharraf’s second coup. These judges are in the dock for “contempt of court” because they are alleged to have disobeyed the order of the seven-member bench by swearing oath on the new PCO.

The controversy has arisen for several powerful reasons. One set of rules seems to be applied to the judges and another to all the others who also disobeyed the order of Nov 3, in particular the current army chief and corps commanders of the time. A judgment regarding their fate has been frozen in a time warp. And then there is the extraordinary “show-cause” notice to four Supreme Court judges by Justice Jehanzeb Rahim, one of the PCO non-functional judges in Peshawar, who says the Peshawar High Court is immune from the proceedings of the Supreme Court. The Supreme Court has moved swiftly to ban non-functional judges from issuing such “illegal orders,” but the damage has been done. “Judges against judges” mocks the very notion of a judiciary.

Finally, it should not be forgotten that the Supreme Court is still sitting on a petition that challenges the 18th Amendment, despite the fact that the 19th has been passed and hasn’t been challenged. What is the meaning of this? Why didn’t that petition become infructuous after the challenge raised in it against some provisions of the 18th Amendment regarding the appointment of judges was suitably resolved in the 19th Amendment, with the implicit approval of the Supreme Court?

In view of these outstanding controversial issues, analysts are inclined to ask where the Supreme Court is headed. Secession or independence? If these issues are blithely brushed under the rug but the NRO case is revived against the PPP, President Asif Zardari in particular, then it is a safe bet that we are heading in the direction of a major political intervention by the Supreme Court to “set things right.” But only time will tell whether this will set things right or irredeemably wrong.



The writer is Jang Group/Geo adviser on political affairs.