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Judicial activism vs. democratic deterrence
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January 13, 2012
Without prejudice to the present judicial activism in the country, it sounds paradoxical that a court at the same time finds a Prime Minister “not honest to his oath” and also gives him multiple options. One of the options also includes that the Court can exhibit “restraint and tolerance,” and leaves it to the masses to decide eventually. If this issue deserves to be left onto the masses, then why the court kept it on top of its priorities to decide before any other case.
Pakistan’s apex court on Tuesday came out with yet another judgment against the notorious National Reconciliation Ordinance (NRO), giving out various options to the defendants, chiefly ruling PPP of President Asif Ali Zardari, whose mouthpiece, former Law Minister Babar Awan, rather hurled covert threats as improvised reaction.

“I don’t know why, but it reminds me the tragedy of East Pakistan dismemberment,” he said, declining any questions in the courtyard of the Supreme Court of Pakistan building at the Constitution Avenue.

This threatening reaction was not an ordinary political development. The main opposition party namely PML-N is joyous as if their enemy has been defeated by another opponent. Nurtured in the nursery of a dictator, though bitten by another, they have simply forgotten repercussions of the confrontation between the apex judiciary and elected administration.

And if the powers that be consider that the ongoing puppet show would definitely go to their advantage in the end, they, too, are mistaken this time. A commoner asks this question from the custodians of the Constitution and also from those who believe that they could interpret it well, why don’t you let the voter decided as per one’s constitutional right.

It is again a commoner’s vantage point that neither the perks of the administration’s functionaries would have any negative impact of this friction heading to point of no return, nor the protocol of judges. It is only the masses that are going to bear the brunt of this now evident tussle between the representative institutions of the state.

Without prejudice to the present judicial activism in the country, it sounds paradoxical that a court at the same time finds a Prime Minister “not honest to his oath” and also gives him multiple options. One of the options also includes that the Court can exhibit “restraint and tolerance,” and leaves it to the masses to decide eventually. If this issue deserves to be left onto the masses, then why the court kept it on top of its priorities to decide before any other case.

These complexities for even a student of law in a way vindicate claims of the insiders that there was yet another deal in the making between the stakeholders to the power that includes the political forces as well. The insiders are insistent that this main instrument in this future deal would be the “independent judiciary.” They argue that the powers that be have dragged the ruling PPP under a double-edged sword. At one side, it is the cutting edge of memogate that the opposition party helped pushed under the purview of the Supreme Court, and at the other side, the NRO case has already gone lethal. Therefore, the insiders believe that the PPP could hardly escape unscathed this time. Keeping the background in sight wherein the PPP initially came into power after striking a deal with former dictator Pervez Musharraf, it would rush for another one even if it is to choose between the devil and the deep blue sea, they opined.

The insiders were of the view that this time the deal in the making was only for an early general elections. The PPP is agreed, but it seeks the Senate elections by the present assemblies and the coming budget also. On the contrary, the opponent forces having PML-N leader Mian Nawaz Sharif as their front-man want the Senate elections deferred till after the fresh elections for the National as well as Provincial Assemblies and the budget 2011-12 by a caretaker setup.

The insiders pointed out that Option No 6 in the court’s order also refers to the same issue of going back to the people of Pakistan. It is pertinent to have a closer look at the text of this option as stated by the court in its order.

Option No. 6: The constitutional balance vis-à-vis trichotomy and separation of powers between the Legislature, the Judiciary and the Executive is very delicately poised and if in a given situation the Executive is bent upon defying a final judicial verdict and is ready to go to any limit in such defiance, then instead of insisting upon the Executive to implement the judicial verdict and thereby running the risk of bringing down the constitutional structure itself, this Court may exercise judicial restraint and leave the matter to the better judgment of the people of the country or their representatives in the Parliament to appropriately deal with the delinquent. After all, the ultimate ownership of the Constitution and of its organs, institutions, mechanisms and processes rests with the people of the country and there may be situations where the people themselves may be better suited to force a recalcitrant to obey the Constitution. It may be advantageous to reproduce here the relevant words of the Preamble to the Constitution of the Islamic Republic of Pakistan, 1973:


“we, the people of Pakistan ------- Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution”.

According to the experts of the Constitutional matters, the court in this option is referring to Constitutional option of early elections. In the eyes of the court, the Prime Minister and the President have failed to fulfill the promise made in their oath besides falling short of the Constitutional eligibility to be a member of the Parliament including the President.

Thus, the political pundits are foreseeing elections within this year. They are, however, unable to understand that whether the PPP would hold these early elections willingly or perforce. According to the PPP insiders, the ruling party might accept the option of early elections even as early as before the Senate polls due in March, but it would not surrender to a caretaker setup for next elections.

The PPP’s outburst against the judiciary and the PML-N is obviously for gaining its bargaining chips in their dealing with the establishment. But the worthy establishment seems to be not in a mood to render any new deal as a ‘give and take’ option. They only want to ‘take’ away from the PPP without giving them anything in reward. The establishment in its self-styled argument claims that the one who is seeking pardon does not deserve anything more than that.

That is why perhaps, Interior Minister Rehman Malik rushed to address a press conference wherein he had nothing to present except a document that was made public by the Saudi authorities some five years back. Yes, he highlighted the same document that former intelligence chief of Saudi Arabia Prince Muqrin had shown to the media before taking PML-N leader Nawaz Sharif back to his country as the guarantor of the deal between him and former dictator General Musharraf.

Now the interior minister’s underlining right after the Supreme Court’s verdict against his government as well as the President that Sharif also got pardon from the same dictator clearly indicates the PPP’s position. The ruling party in so many words is arguing that if the court accepts Musharraf’s pardon for Nawaz Sharif, then it must accept the same dictator’s favors to the PPP leadership in terms of NRO.

Net result of this skirmish between the executive and judiciary on the overall economy was reflective from the stock market on Tuesday. It suffered a heavy loss both in terms of sentiment and sharp declining value of shares. The market was on a recovery drive till mid-day, but the disclosure of the court’s decision came down as a bomb shell and it fell by over 100 points on the Karachi Stock Exchange’s KSE-100 Index.

The court’s decision and bizarre reactions from the government have simply perturbed the daily wager who was already living in a miserable condition having no bread and butter at all. Daily wagers in the country are already forced to commit suicide or ironically sell their children as the chances of their livelihood have simply dried out due to energy crisis, war on terror, and lack of political instability. Now these new tensions between the judiciary and executive have simply added insult to the injury of commoners.

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