M.A.Malik

The personal appearance of Prime Minister Syed Yousuf Raza Gilani before the seven-member bench of the Supreme Court on contempt of court notice, to explain his position in regards to the non-implementation of the part of the NRO decision regarding re-opening of Swiss cases against the President, undoubtedly proves the ascendancy of the court in matters pertaining to dispensing of justice as well as the esteem and veneration in which the judiciary is held by the holder of the highest executive office in Pakistan; a gesture even appreciated by the court and termed as a ‘great day’ in the history.  The Prime Minister has set a very healthy tradition and reiterated the fact that the present rulers do have an unflinching belief in the maxim that ‘nobody is above the law’.

The judiciary as a custodian of the Constitution and guarantor of the fundamental rights of the people is not only considered as the most sanctimonious organ of the State machinery but also a foundation on which civilisations are built.

All the religious and political philosophies ungrudgingly acknowledge and espouse the independence of judiciary as a vehicle to ensure social, political and economic progress and peace in a society; lack of which can cause anarchy, chaos and upheavals.  In the modern era, the written Constitutions clearly spell out the powers of the three organs of the State i.e the legislature, executive and judiciary under the principle of trichotomy of powers so that they perform their functions within their assigned spheres. Under such an arrangement the judiciary exercises its independence within the Constitutional limits and has limited scope of authority which is an internationally recognised principle of jurisprudence.

Another irrefutable and settled principle of law is that it is not for the judges to determine what the Constitution and law should be but what it is. In other words judges cannot act as legislators.  In the backdrop of the foregoing parameters, it will perhaps be pertinent to look at the NRO decision to see whether it was in conformity with these principles of jurisprudence or not. As far as declaring the NRO ultra vires is concerned it is beyond any reproach legally.

The government has implemented the decision in 8032 out of 8034 cases. The two cases pertain to the President and Governor Sindh who enjoy immunity from prosecution during the tenure of their offices.

The Prime Minister in his defence reiterated this point and told the court that the intention was never to defy the judiciary.  The position taken by the government that the writing of the letter to the Swiss authorities for re-opening of the case against President would itself tantamount to the breach of the Constitution, is not without substance.

The Prime Minister being the Chief Executive is under obligation to uphold the Constitution.  Article 248(2) is so categorical about immunity that it hardly needs any interpretation.

The legal and Constitutional experts believe that since the court in its decision in the NRO case did not address the question of Presidential immunity under Article 248, the government stance on the issue has strong Constitutional basis.

Some others also reiterate the fact that the court itself should have taken note of this Article as in its presence there was no need for anybody to go to the court and claim that immunity, as observed by the three member bench hearing the case on implementation of the NRO decision.  Almost all are ,however, unanimous in their view that President does enjoy immunity from prosecution until he holds that august office. The PM has explained his position and his lawyer has also taken the stance that the government does not intend to defy the court and the letter will be written when President Zadari leaves the office.

Whether the court ultimately accepts this position remains to be seen but one thing is certain that the question of contempt of court and Presidential immunity  now stand inextricably linked and the court will have to deliberate and decide the issue of Presidential immunity before proceeding on the contempt issue.

As regards the implementation of SC decisions by the government, contrary to the persistent propaganda of the detractors of the government, political opponents, rightist and reactionary elements and the hype created by the partisan media regarding defiance of the court orders, the fact of the matters is that the government has implemented all court decisions, except the reopening of cases against the President.

It has even implemented those decisions where the judiciary ventured into the territory of the Executive and the Parliament.

The cancellation of the promotions of the 50 top bureaucrats and reframing of the promotion rule in line with the decision of SC is a vivid example of the respect that the executive had for the apex court, although it was the exclusive preserve of the government.    

Article 239(5) of the Constitution states ‘No amendment of the Constitution shall be called in question in any court on any ground whatsoever’. But the SC did not shy away from exercising its authority where its jurisdiction has been explicitly ousted by raising objections on the provision of 18th Amendment pertaining to the appointment of judges. By challenging the 18th Amendment and consequently having their sway in the shape of 18th Amendment, the judges also assumed the role of legislators. In the appointment of NAB Chairman case, the SC while declaring the appointment as null and void also demanded a role for the CJ in the future appointment of the NAB Chairman though there is no statutory basis for that. 

The very fact that the government did not confront the judiciary on these matters and accepted those decisions ungrudgingly, proves that the government has utmost veneration for the decisions of the apex court.