There is a widespread apprehension that the government is heading for confrontation with the judiciary. Opinion leaders have said so in their writings and discussions on the Electronic media. Sheikh Rashid, who is known for making political predictions, says he sees a head-on collision with the judiciary on the cards, which he says will create a dangerous situation for the system; while Imran Khan believes that the only way to set things right and avoid a conflict is to hold mid-term polls which he says should be held by an independent election commission under the supervision of the Supreme Court. Prime Minister Yousuf Raza Gilani says ‘we will honour the Supreme Court decisions in letter and spirit.’ However, the opposition leaders insist that the government has no intention of implementing the Supreme Court decisions with reference to the NRO judgement. The government they say is using delaying tactics to avoid important implications of the Supreme Court judgement.
Meanwhile, the president has returned to the Supreme Court Chief Justice the summary of recommendations for appointment of judges, although critics have said that the consultation of the Chief Justice of Pakistan is binding on the executive. However, the Prime Minister has said that the appointment of the judges will be made through a process of consultation with other parties. Ironically, President Asif Ali Zardari has been saying that conspiracies are being hatched to undermine the popularity of the Pakistan People’s Party (PPP), which is the custodian of the rights of the people. People opposed to me, he said are not against me but against the consolidation of democracy in the country.
Chief Justice Iftikhar Chaudhry has acknowledged that this is a testing time for the judiciary and expressed his fear that hopelessness would arise if courts failed in delivering justice. He said that the people should have faith in the judiciary because of its principled stand and vowed that the judiciary would not betray them.
Basically, the problem between the government and the judiciary is lack of mutual trust, which has found expression in one form or the other. Currently the bone of contention between the two is the Supreme Court which declared the National Reconciliation Ordinance (NRO) unconstitutional and ordered the government to re-open cases against all those who benefited from the NRO. But the tension between the two institutions taken root which earlier on. Although the PPP was a signatory to the Charter of democracy which had vowed along with the Pakistan Muslim League-Nawaz (PML-N) to restore the deposed judges among the first-thing the government would do after coming into power. But it failed to do so, after Asif Ali Zardari had become the president and had the authority to do so, until the lawyers had launch an agitation, backed by Nawaz Sharif, for the restoration of the Supreme Court judges. According to observers the government was still undecided even after the Nawaz Sharif led agitation threatens to go to Islamabad in a long march. But the then outside forces acting as moderator intervened to put pressure on President Asif Ali Zardari. It is said that the Chief of the Army Staff told the President to compromise rather than to use force to crush the agitation. The Americans were also said to have sent a similar message to the President. The government willy-nilly agreed to restore the deposed judges.
Actually, the PPP had a stake in securing judicial sanction for the NRO. Ever since the Supreme Court judgement declaring the NRO null and void, it has become the sticking point between the government and the judiciary. The beneficiaries of the NRO are fearful that they will have to face the music all over again, and go to the courts of law to prove their innocence over corruption charges. The opposition has demanded that all the beneficiaries of the NRO including President Asif Ali Zardari first resign and then face the charges against them. Mian Nawaz Sharif syas ‘if I were the president of Pakistan, I would resign my job and prove my innocence in a court of law.’ However, the ruling party leadership including the president refused to resign saying that they were just the accused and not convicts, and so would not resign merely on the basis of accusation which they said were politically motivated. In an abortive move the government party also sought to get the NRO legitimised by Parliament. A bill was moved and discussed in the standing committee of the Parliament but later withdrawn which the critics said was done because the PPP was not sure of securing a majority in the House as some of its coalition partners had also refused to vote for the NRO.
How to avoid confrontation between the government and the judiciary is the critical question today. Everybody agrees that we must do everything possible to stop it happening or it will spell disaster for the system. But how to go about it calls for a prompt and a mutually acceptable decision theoretically it is a simple proposition. All the organs of state power, the president, the parliament the prime minister, the judiciary and the army must conform to the functions and the roles assigned them it under the constitution and not transgress their authority and interfere in the affairs of another institution. But everything is not written in the Constitution, not even in the American Constitution. Therefore, apart from the written word the organs of state power will have to rely on convention which are a part of the democratic system everywhere and will have to be evolved in due course of time. The government must now recognise the reality of an independent judiciary which has come to stay and is the custodian of the Constitution and the source of the rule of law, while the judiciary should be capable of making decisions which are not politically motivated or support one or the other power faction. We must also ensure that the judiciary does not fall victim to any of the corrupt practices.