A call to save the system , a call of sanity

By Barrister Amjad Malik
I am bit puzzled at the SC orders verbally to replace a head of federal investigating agency Mr. Khosa as I was puzzled when judiciary tried to set rate of sugar, tried to sort out traffic in Karachi and vegetable prices. I am afraid despite a staunch supporter of independent judiciary and being the petitioner for chief justice against a military dictator, I for once cannot see the wisdom, and logical reason in undermining the corruption free executive authority if it is coupled with good governance. I feel it must not be challenged and interfered by any other institution except Parliament.

It’s not judiciary’s function to appoint or recommend executive organ’s heads or to cover the main holes or determine sugar or vegetable prices, it’s the job of the Chief executive, and units executives  who are answerable to their cabinet and in return the Parliament. If Prime Minister cannot assert his legal authority, he must go home. No one is a smart lamp jinni who can in this situation deliver if judiciary on the whole sale basis issues verbal directives and expects chief executive to act upon it overnight without consulting his cabinet colleagues, allies and in this case his party head.

It’s a rightful job of the SC to interpret the constitution and law, and settle major disputes between provinces and remove a deadlock, but Supreme court must be careful in their use of ‘suo moto powers’ as no limits have been set yet on this deadly weapon directly pointed against executive. Currently the use of this power is prima facie disabling the smooth function of the executive and at least on each notice a 3 month period must be given to executive to muster their administrative actions and matter must be looked at by provincial chief justices to start with whereby appeal rights against those orders and directives remain intact. These are matters for the parliament to look at but currently, this useful item though is aiding greatly in some cases to public at large who are resource less with limited access to justice but is a cause of anxiety for many who feel ready to appear in court on hourly notice.

Supreme Court judgement is a difficult challenge and its politicians internal weakness that matter came to judges, they have voluntarily given their tale in the hands of hunters. Govt’s failure to erect consensus and their obstinacy to get it approved as it is a nonsensical behaviour unworthy of their parliamentary positions. They should have capped NRO in the parliament and replaced it with new Accountability commission as was chartered by both former premiers, with a new law to curb corrupt practices whilst at public office and set up a truth and reconciliation commission separately to filter all backlog of cases addressing the anxiety of public and grievances of the accused, some of whom have served sentence for years, and presumption of innocence must be maintained until proven guilty by a court of law.

Constitution is clear that Chief Justice cannot be tried except by Supreme Judicial Council, Army chief by his peers through court martial recommended by Corpse commander, premier by his members of national assembly voters in the parliament through vote of no confidence and President through his peers in parliament via impeachment. Ousting president via court petitions will be not only dangerous but against the spirit of constitution and will set a undesirable and dangerous trend for the newly born democracy as all of them are guilty as charged by allowing him to be elected at the first place where an opportunity was lost to check his election preaching common sense to him that head of state must remain a personal of integrity, without baggage and a fatherly figure.

Now resignation is a different ball game altogether, its his choice but Pakistani tradition is different to that of UK, Europe and USA , If Chief Justice does not resign after allegations levelled against him believing he is innocent until proven guilty by his peers , and he throughout maintained that he is chief justice until removed accordingly, similarly forcing g president to resign or his ouster otherwise will be a difficult demand and his legal exit is only possible through impeachment by Parliament. Still Justice Ramdey’s detailed judgement of 20 July 2007 is not out yet and it must be published in order to regulate future actions under Article 209, as law still is not clear.

I think political settlement is way out saving the system, democracy and retaining balance of power between institutions. Despite President’s obstinate behaviour in the past, his broken promises, its Still not late and it must be expected that Prime Minister Nawaz Sharif will offer a hand of cooperation to effect consensus to address all issues through 18th amendment in the parliament, and restart where he left with Mr. Zardari, a way out to save democracy and constitutionalism in the country.

Otherwise, if we are little late, an other General will be emerging out of this crises telling the nation how corrupt these politicians are, and he will promise to hold true accountability this time, and we will be back to square one, not a desirable scenario and all the blame will be of politicians who left politicking whilst consultations and remained stuck in their small egos.  They must allow the parliament a chance to function at least for once and a club carrying collective wisdom of the nation will emerge as victor out of the mother of crisis. Lets have faith for once on our Parliament only if it shows its muscles.

Barrister Amjad Malik is a chair of Association of Pakistani Lawyers (UK)

19 December 2009