Pakistan’s so-called independent judiciary is mounting pressure on the newly elected prime minister Raja Pervaz Ashraf to write the oft-debated letter to Swiss authorities against Pakistan’s President. It has already disqualified and ousted Yousuf Raza Gilani as PM after convicting him of contempt for failing to comply with its unconstitutional directive and the court this month made veiled threats that the new premier could suffer the same fate.
The court as the supreme interpreter of the Constitution as well as self-assumed defender of the nation’s morality is continuously trying to invade into politics setting aside the Parliament’s role to legislate in line with ground realities as well as emerging needs. And we as the country is moving towards ‘judicialisation of democracy’ since the unelected institution is busy in on spot legislation through Judges remarks and unconstitutional verdicts i.e disqualification of prime minister through court’s order. Moreover, the chief justice is now clearly said that if the court had not granted immunity to the prime minister, it could also withhold it from the president. However, this one-eyed approach is dictatorial because in the Constitution, there is complete immunity for the President and the judiciary has no power to amend the Constitution.
Chief Justice’s recent remarks has raised a lot of eyebrows, especially when he said that the concept of parliament’s sovereignty is ages old so it is not applicable now.
But failed to understand that Supreme Court’s powers to interpret constitution are not only non-absolute, but very limited in terms of determining the actual intent of legislating body.
President Asif Ali Zardari rightly defined parliament had every right to enact laws, and would continue to do so in the future. In an apparent retort to remarks by the chief justice of Pakistan who said that the Constitution trumped all institutions, President Zardari said that parliament was supreme as it expressed the will of the people.
It is really unfortunate that the present Judicial hyperactivism is threatening democracy in Pakistan. Furthermore, the state un-elected organs are undermining people’s representatives legislative role and threatening the existence of parliament.
Surely people want an independent judiciary free from the influence of establishment and free from their own biases and they struggled for it. But right now, they are resisting and opposing military dictator style judiciary, it is a worrisome development that in this era of ‘judicial dictatorship’ law is defining the constitution.
One of the most important reason causing damage to parliament is the opposition parties, especially Punjab based PML-N’s undemocratic role and interests that are trying to exploit this situation for their political goals and the un-elected judiciary is using this opportunity as a instrument for weakening parliament further.
The PML-N leader Nawaz Sharif is trying to portray himself as the true defender of the Supreme Court. And in this endeavour, he continuously and repeatedly showed very liitle levels of determination and respect to parliament’s supremacy.
The shocking events of Nawaz Sharif vs Sajjad Ali Shah row are still fresh in the nation’s memory. When a similar contempt notice was issued in 1997 by the then chief justice of Pakistan, Syed Sajjad Ali Shah, to Nawaz Sharif. But what did the PML-N leadership and Nawaz government was entirely opposite to democratic practices. The PML-N government divided superior judiciary to get their undemocratic objectives and ‘save’ parliament’s supremacy.
On Nov. 19, 1997, the Supreme Court charge sheeted then Prime Minister Nawaz Sharif and eleven other respondents, including seven legislators, for their alleged commission of contempt of court.
On November 5, 1997, as recounts Gohar Ayub Khan in his book ‘Glimpses into the Corridors of Power‘, Nawaz “asked me to accompany him to the PM’s House. In the car, the PM put his hand on my knee and said, ‘Gohar Sahib, show me the way to arrest the Chief Justice and keep him in jail for a night‘.” And on November 27 of that same year he had his goons physically storm the Supreme Court of Pakistan while Sajjad Ali Shah was hearing a contempt case brought against him (Nawaz) and then proceeded to engineer, with the help of Sajjad’s brother judges, the successful removal of their Chief Justice.
Nov. 28: Chief Justice Sajjad Ali Shah requested the president to take steps to post army or paramilitary soldiers in the Supreme Court building, and at the residences of the chief
justice and other judges hearing the contempt case against Prime Minister Nawaz Sharif.
In his letter Justice Sajjad Ali Shah narrated the incidents which took place in the court on Thursday and Friday. He stated that during the hearing of the contempt case against the prime minister and others, certain advocates stooped to rowdiness. He said some of the intruders were overheard saying that they wanted to take the CJ hostage.
The case was adjourned and the judges were taken to the chamber of the chief justice under police escort. He said after Thursday’s rowdy scenes in the court room, he had directed the registrar to issue passes only to people concerned as usually government supporters jam-packed the court. The chief justice further said several people had informed him over telephone that a BBC report about the attack showed policemen doing nothing to stop the mob.
He said when court officials present at the gate asked the police as to why they were not preventing the crowd from entering the premises, they replied that since most of the protesters were government supporters, they were helpless.
Justice Sajjad said films were available with court officials to show how big the crowds were and how they broke into the court room. He further said court officials told him that when the mob was dispersing, they heard announcements that arrangements had been made for lunch at the Punjab House.
Nawaz Sharif succeeded in dividing the judges into two camps. The group of judges that sided with the Prime Minister said openly that if Justice Sajjad Ali Shah gives up trying cases of Contempt of Court against Mian Nawaz Sharif, they will accept him as the Chief Justice. The infamous Article 58(2)(b) (Eighth Amendment to the Constitution of Pakistan) was restored and suspended within minutes by two separate benches of the apex court assembled against each other. A three member bench headed by Chief Justice Sajjad Ali Shah suspended the operation of the Thirteenth Amendment restoring the powers of the president to dissolve the National Assembly, a verdict which was within minutes set aside by another 10-member bench.The 10-member bench headed by Saeeduzzaman Siddiqui granted stay against the chief justice’s order minutes after it was passed, even without receiving any formal petition or the copy of the order. All efforts to resolve the judicial crisis failed as both the judges’ groups stuck to their stance and issued separate cause lists.The dissident judges, who do not acknowledge Chief Justice Sajjad Ali Shah as chief justice, issued a fresh cause list for 15 members’ full court session.
28th November 1997: The building of Supreme Court at Islamabad was attacked. The workers of Pakistan Muslim League Nawaz Group (PML-N) were brought in thousands in buses arranged by the elected members of National & Provincial Assemblies around to ransack the buildings and sanctity of the Supreme Court. Pakistan grappled with its worst-ever constitutional crisis when an unruly mob stormed into the Supreme Court, forcing Chief Justice Sajjad Ali Shah to adjourn the contempt of court case against Prime Minister Nawaz Sharif. Thousands of PML-N supporters and members of its youth wing, the Muslim Students Front (MSF), breached the police cordon around the courthouse when defence lawyer S M Zafar was arguing his case. A journalist rushed into the courtroom and warned the bench of an impending attack. Whereupon, the Chief Justice got up abruptly, thanked Zafar and adjourned the hearing. While judicial members left the courtroom soon after, the mob entered it shouting slogans, and damaged furniture. The unruly mob, led by ruling party member from Punjab Sardar Naseem and Colonel (rtd) Mushtaq Tahir Kheli, Sharif’s political secretary, chanted slogans against the Chief Justice. The mob also beat up Pakistan People’s Party senator Iqbal Haider.
3rd December 1997: A Supreme Court bench declared Sajjad Ali Shah’s appointment as Chief Justice illegal. CJ Shah was already barred on 3rd December to sit on CJP’s chair and Justice Ajmal Mian was given the charge of as acting CJP since then. On 23rd December he was elevated to take oath as the new Chief Justice of Pakistan after a judicial order passed by a 10-member bench. Critics were also there to say that role of Justice Ajmal Mian was controversial in that scenario as he effectively allowed a coup to occur within the Supreme Court of Pakistan against a sitting chief justice. The 10 member bench had earlier directed the CJP’s office not to take any further orders for constituting benches from the Chief Justice Sajjad Ali Shah (under restraint) and orders regarding day-to-day working and administration of the court should be obtained from Justice Ajmal Mian till the appointment of Acting Chief Justice. The 10- member bench which was hearing the petitions challenging the appointment of Justice Sajjad Ali Shah as Chief Justice of Pakistan was also constituted by Justice Ajmal Mian being the senior most in routine.
Nawaz Sharif’s attack on the Supreme Court: A rare footage
The PML-N President Nawaz Sharif’s last week statement was a reversal of his 1997 position that:
“Parliament is the creator and guarantor of the Constitution. If parliament is removed, it would spell the end of democracy. Parliament has a central place in democracy. All other institutions perform ancillary functions and guarantee the supremacy of the Constitution.”
The present situation is very much similar to what was happening in the 90’s between elected parliament & un-elected judiciary. But he has significantly changed his position as well as tune, and now he says, “if the need arises ten prime ministers could be sent home for not obeying the courts.”
Mian Nawaz Sharif is inconsistent with a statement he had made in 1997, when he was prime minister and facing same kind of judicial activism.
Nov. 27: Prime Minister Nawaz Sharif has termed the current crisis as “very critical”, declaring he would fight till the victory of “the democratic forces”. Reiterating his stance that “the people of Pakistan have given me the mandate to serve them,” he said he would continue to serve the people “without caring for reward or punishment”.
The prime minister claimed whenever he wanted to do something for the country, vested interest turned against him to block his move. He asked, “Have I done anything wrong if got adopted the Anti-terrorists Act to punish the terrorists and subversive elements?
Should I be blamed for trying to curb sectarian violence which is spreading in the country like cancer!”
He regretted that the foreigners in Pakistan were being killed every now and then. He referred to the recent killings of the Iranians and the Americans and said, “Should I give up and go home? No, this is not going to happen. I will do my duty without any fear of the consequences.”
The prime minister said it was his desire that the courts should impart timely and inexpensive justice. He was of the view that unless criminals and terrorists got severe punishment, the violence and growing rate of crime could not be stopped. Nawaz Sharif said
there were so many problems which could not be resolved overnight and that the government needed time and support of all the people.
Citing the law and order situation in Karachi, Nawaz Sharif said Pakistan’s biggest city was experiencing unmanageable problems. He said the situation in other cities was also bad and called for making serious efforts at the government’s as well as the people’s level.
He expressed hope that the current crisis would be over soon, allowing him to fulfill his economic agenda which is aimed at bringing prosperity throughout the country.
The prime minister pointed out that the adverse law and order situation was a serious issue and it had to be given top-priority. He said the lives and property of the citizens was no longer safe.
On Oct 31, 1997, DAWN reported:
The 22-minute speech of the prime minister contained a litany of complaints against “conspirators” who, he said, had struck whenever the country was put on the road to progress. In 1960, the prime minister reminded, the conspiracy began just when progress had started and, eventually, the country was divided. In 1990, his
government had tried to improve the lot of Pakistan but once again an artificial crisis was created which destroyed everything. “And now again hurdles are being created at every step aimed at improvement,” the prime minister protested.
The prime minister, however, made it a point to talk high of parliament, saying it symbolised the will of the people. “For the sustenance and strength of democracy, it is essential that each institution should remain within its own sphere without assuming the function of the other.”
He said: “Parliament is the creator and guarantor of the Constitution. If parliament is removed, it would spell the end of democracy. Parliament has a central place in democracy. All other institutions perform ancillary functions and guarantee the supremacy of the Constitution.”
Since the inception of democratic government in Pakistan, after a long military dictatorship, Mian Nawaz Sharif and his party members, who are now become petitions masters, have been consistently supporting attempts to limit the Parliament’s right to legislate and his Party submitted petitions in the Supreme Court against the parliaments passed laws. All major Political parties criticized and doubted Nawaz Sharif’s intentions of taking the memogate to the Supreme Court, saying that Nawaz Sharif should have waited for the outcome of the parliamentary committee. And now, all his party members are in Court to listen its verdict on the Contempt of Court Bill, which is very much like their own passed bill in 1997.