With apex court shows no sign of backing down and the government planning to clip the wings of the judiciary another clash between the two is inevitable, says Amir Mir.
Following the disqualification of Prime Minister Yousaf Raza Gilani by the Supreme court of Pakistan, yet another round of government-judiciary tussle seems to be on the cards, with a defiant judiciary now creating problems for President Asif Ali Zardari also.
While tensions between two constitutional state pillars, the judiciary and the executive, seem to be rising, a defiant judiciary delivered a double whammy to the government on June 27 with the Supreme court giving a two-week deadline to the newly-elected prime minister to inform whether he would ask Swiss authorities to reopen corruption cases against President Zardari, and the Lahore High Court asking President Zardari to resign from his post as the co-chairperson of the Pakistan People's Party by September 5 because he could not hold dual offices.
The judiciary appears to be in no mood to offer any respite to the government which certainly can now feel the whirlwind it has fallen into: public backlash, opposition's criticism and standoff with the judiciary, led by Chief Justice Iftikhar Mohammad Chaudhry.
Apparently, decisions after decisions are being delivered by the apex court, ensuring that the government does not feel at ease with the way it has been going around its business for the past four and half years. Now the apex court has directed the newly elected Premier Raja Pervez Ashraf to inform the court by July 12 on whether or not he will write a letter to the Swiss authorities for reopening the alleged graft cases against Zardari.
On the other hand, the government is contemplating to clip the wings of the defiant judiciary by introducing a constitutional amendment which will curtail the powers of the apex court to interpret constitutional issues, and set up a new federal judicial body to deal with such matters.
Having spent less than a week in the prime minister's office, Ashraf has been presented a conundrum that led to the ousting of his predecessor: How does one not write a letter to Swiss authorities to reopen graft cases against Zardari without committing contempt of court a charge which led to the ouster of Gilani last week?
While hearing the National Reconciliation Ordinance implementation case on June 27, the apex court ordered Ashraf to submit a written response on whether if he will write a letter or continue to defy the court orders, just like Gilani. A three-member bench headed by Justice Nasirul Mulk ordered Attorney General of Pakistan Irfan Qadir to get in touch with Ashraf and inform the court about the prime minister's stance.
In its written order, the Supreme court's message to the incumbent chief executive rang out loud and clear: "As far as non-implementation of para 178 of the judgment is concerned, the former prime minister was tried, convicted and sentenced, and as a consequence he lost membership of Parliament. The new prime minister was elected last week and we trust him to implement the directives (of the court). In the meanwhile, the attorney general is directed to seek instructions from prime minister (and submit the same in the court by July 12)."
The attorney general, who is known for his less than amiable relationship with the court, reiterated his stance and maintained that the honourable court should not press the government for writing the letter because, firstly, the President enjoys absolute constitutional immunity against any criminal prosecution and secondly, none of the graft cases could be proved against the President in any court of law during the last 15 years.
But the supreme court judges expressed the hope that the new prime minister would not repeat the mistake committed by Gilani.
Since the apex court led by a defiant chief justice continues to show aggression, the government is considering clipping its talons through a constitutional amendment to curtail the supreme court's powers to interpret constitutional issues. The radical step was reportedly discussed at a meeting of the inner-most circle of the PPP, thought to be close to Zardari, who would subsequently share it with his allies.
The proposed judicial body is likely to have the same powers as the Supreme court when it comes to hearing constitutional petitions, like the one that caused the disqualification of Gilani. The proposed amendment to the 1973 Constitution, likely to be drafted by the top legal brains of the PPP government, will elaborate the distribution of powers between the supreme court and the new judicial body.
The proposal was first floated at a party meeting held the day Gilani was disqualified by the apex court, and some of Zardari's allies suggested that he take an aggressive stance against what they thought was unacceptable judicial activism. But Zardari advised his angry associates not to push for a hasty decision and assured them that he would take the step at an appropriate time.
The meeting decided that the PPP would first try to curtail the energy crisis before what may appear an extreme step and spark hostile reaction not only from political opponents but also the legal fraternity. The PPP and its allies have a two-thirds majority in both houses of Parliament that is needed to amend the Constitution. However, the government's proposed move to establish a separate Federal Constitutional Court could exacerbate the executive-judiciary tussle.