In the light of recent commentaries by leading Pakistani and international lawyers including but not limited to Asma Jahangir, Justice Markandey Katju (Indian Supreme Court), Saroop Ijaz etc, it is evident that Supreme Court of Pakistan has violated not only national constitution but also attacked the very foundation of parliamentary democracy in Pakistan.
Former Indian Supreme Court judge Justice Markandey Katju, writing in The Hindu recently, questioned what he said was the “lack of restraint” on the part of Pakistan’s superior judiciary.
I regret to say that the Pakistani Supreme Court, particularly its Chief Justice, has been showing utter lack of restraint. This is not expected of superior courts. In fact the court and its Chief Justice have been playing to the galleries for long. It has clearly gone overboard and flouted all canons of constitutional jurisprudence.
Justice Katju noted that Article 248, Clause 2 of the Pakistani Constitution very clearly states: “No criminal proceedings whatsoever shall be instituted or continued against the President or governor in any court during his (or her) terms of office”. He then went on to ask that if this is the case, how could a court approach what is a settled provision in the “garb of interpretation”?
The Pakistan Constitution draws its basic structure from Anglo-Saxon laws, which establishes a delicate balance of power among the three organs of the state — the legislature, the executive and the judiciary. However, in recent past, particularly since April 2012, Pakistan’s top judiciary led by Chief Justice Iftikhar Chaudhry has encroached into the elected parliament’s domain. This situation is not only a violation of Pakistan’s constitution but violates privilege of the elected parliament.
In his obsession to become a saviour of the nation and hero of Pakistani media, CJ Chaudhry has become a tool in the hands of right-wing dominated politicians and media, and is through his actions and verdicts hurting Pakistan’s very security and stability.
Lawyer Saroop Ijaz writes:
The Pakistan Supreme Court has sent an elected prime minister home. This in itself is disturbing, however, permissible it may be under some circumstances. What is infinitely more worrying is the fact that the Supreme Court did not feel itself constrained by the procedure of law. The argument that the order of the Speaker cannot overrule the Court is a very decent one, yet does not explain why the Court ignored the clear provisions of the Constitution to send the matter to the Election Commission of Pakistan. There is also the issue of the three-member bench making a mockery of the seven-member bench. However, there is a vaguely linear progression to all of this. The Supreme Court terminated the employment of “PCO” judges without reference to the Supreme Judicial Council, which was allowed to go unexamined. More recently, when memberships of members of parliament were suspended for dual nationality, again without reference to the Election Commission of Pakistan, not enough noise was created. Demagogy has a tendency of being incremental sometimes; they have tested the waters and now found it appropriate for a splash. It is likely to get worse now, it always does.
Even now there is a curious reluctance to unequivocally condemn, or mildly speaking, criticise the judgment of the Supreme Court. Yousaf Raza Gilani and his maladministration is not the issue here, the issue is considerably more fundamental, namely the right of the people to elect their representatives and also to send them home. The Supreme Court does not represent the will of the people and the Courtrepeatedly saying so to the contrary would not change that. Let me also say this about the law of contempt, if the Court in fact does believe that it represents the will of the people then it will have to make its peace with the fact, that people talk and also talk back.
It is high time that Pakistan’s parliament, not only ruling PPP but also other parties (PML-Q, ANP, MQM, JUI-F etc), require Chief Justice Iftikhar Chaudhry to appear before the Parliamentary Committee on Rules of Procedure and Privileges to explain his position on supremacy of elected parliament.
According to Section 227 of the Rules of Procedures: “A Committee shall have power to require the attendance of persons …. if such course is considered necessary for discharge of its duties.”
CJ must be asked to explain why he is insisting on violation of Pakistan’s constitution and also why he is insulting the mandate given by the people of Pakistan to their elected parliament. The Committee should ask CJ why he wants elected Prime Minister to violate Article 248 of Pakistan’s Constitution (related to President immunity). https://lubpak.net/archives/9123
The Parliamentary Committee on Rules of Procedure and Privileges must ask Justice Jawad S. Khwaja & other judges of the SC to explain their alleged past and present links with Hamid Khan Group of PTI who was a petitioner in PM Gilani’s disqualification case.
The Parliamentary Committee should require CJ to assure he won’t force Pakistan’s current Prime Minister (Raja Pervez Ashraf) and other members of the executive to violate Pakistan’s constitution. He must also assure that Supreme Court will refrain from further trespassing into the parliament’s domain.
In case, CJ is unable to satisfy the Parliamentary Committee on Rules of Procedure and Privileges, SC may be dissolved and reformed as per the Charter of Democracy (CoD) signed by late Benazir Bhutto and Nawaz Sharif.
There are precedences in other countries where elected parliament had to intervene in order to remove a corrupt or trespassing judge or chief justice. Recently in May 2012, parliament in Philippine voted to remove the country’s Chief Justice of Supreme Court.
On 29 May 2012, the Philippine Senate voted to remove the country’s top judge for failing to disclose his wealth, a landmark victory in a country wide campaign to root out endemic corruption in the Southeast Asian nation. More than two-thirds of the 23 senators voted to oust Supreme Court Chief Justice Renato Corona, who becomes the first official in the country to be removed by an impeachment court. The decision bars him permanently from public office. The ruling is likely to be welcomed by investors amid concern that the four-month-long trial was distracting the government from policy matters at a time when the Philippines is seeing a resurgence of interest in its long-underperforming economy. (Source)
The following extract from the CoD describes the formation of superior judiciary:
3. (a) The recommendations for appointment of judges to superior judiciary shall be formulated through a commission, which shall comprise of the following:
i. The chairman shall be a chief justice, who has never previously taken oath under the PCO.
ii. The members of the commission shall be the chief justices of the provincial high courts who have not taken oath under the PCO, failing which the senior most judge of that high court who has not taken oath shall be the member
iii. Vice-Chairmen of Pakistan and Vice-Chairmen of Provincial Bar Association with respect to the appointment of judges to their concerned province
iv. President of Supreme Court Bar Association
v. Presidents of High Court Bar Associations of Karachi, Lahore, Peshawar, and Quetta with respect to the appointment of judges to their concerned province
vi. Federal Minister for Law and Justice
vii. Attorney General of Pakistan
(a-i) The commission shall forward a panel of three names for each vacancy to the prime minister, who shall forward one name for confirmation to joint parliamentary committee for confirmation of the nomination through a transparent public hearing process.
(a-ii) The joint parliamentary committee shall comprise of 50 per cent members from the treasury benches and the remaining 50 per cent from opposition parties based on their strength in the parliament nominated by respective parliamentary leaders.
(b) No judge shall take oath under any Provisional Constitutional Order or any other oath that is contradictory to the exact language of the original oath prescribed in the Constitution of 1973.
(c) Administrative mechanism will be instituted for the prevention of misconduct, implementation of code of ethics, and removal of judges on such charges brought to its attention by any citizen through the proposed commission for appointment of Judges.
(d) All special courts including anti-terrorism and accountability courts shall be abolished and such cases be tried in ordinary courts. Further to create a set of rules and procedures whereby, the arbitrary powers of the chief justices over the assignment of cases to various judges and the transfer of judges to various benches such powers shall be exercised by the Chief Justice and two senior most judges sitting together.
The CoD offers best path to reconstitute the Supreme Court consistent with the essence of parliamentary democracy. In such a scenario, Pakistan’s Supreme Court may be reconstituted just like Senate, assuring equal representation of all ethnic groups (not domiciles), also making sure that no PCO judge (i.e., one who has in the past validated a military coup or endorsed dictator’s actions) is a Chief Justice of the Supreme Court or High Courts in provinces.