In the light of recent commentaries by leading Pakistani and international lawyers including but not limited to Asma Jahangir, Justice Markandey Katju [Listen Justice Markandey’s interview at BBC urdu] (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. Justice Katdue wrote: “In fact, the court and its Chief Justice have been playing to the galleries for long. This has clearly gone overboard and flouted all canons of constitutional jurisprudence”. He said 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 desire to become a saviour and hero of Pakistan, CJ Chaudhry has become a tool in the hands of 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.
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). http://criticalppp.com/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. 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 part of the Supreme Court or lower judiciary in provinces.
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