ON the face of it, Chief Justice Iftikhar Chaudhry’s remarks on Saturday that parliament cannot enact any law that is repugnant to the constitution, fundamental rights and Islamic provisions seems innocuous and uncontroversial — after all, few would argue that parliament’s right to legislate is unfettered. But the comments of the chief justice have come against a particular background. One, at no point has the present parliament attempted to legislate against what can be considered the basic features of the constitution. After the 18th Amendment, the Supreme Court did question the new procedure for appointment of superior court judges but legal opinion was divided on whether parliament had exceeded its mandate or not. Two, it is the activism of the court, which seemingly reached its apogee with the ouster of former prime minister Yousuf Raza Gilani, that would appear to be the more immediate threat to the democratic order — not speculative acts by the government that may or may not occur. In the face of unprecedented activism by the court, the government has by and large remained unprovoked, even going so far as to accept the loss of one prime minister and then its first-choice replacement prime minister in a matter of days.

Crucial to the stability of the democratic order in the days ahead, then, may well be the choices the Supreme Court itself makes. The first test will be the fate of the new prime minister: will the court move to oust him too if he refuses to write the so-called Swiss letter, as is likely? Given that elections are now much closer than they were when the court reactivated the NRO issue in January, judicial restraint at this point in time may not necessarily be seen as a climbdown by a judiciary intent on carving out an equal space for itself alongside the traditional power centres in the country. However, if common sense is to prevail, the political temperature will have to be brought down first — and that would entail the judiciary following some of its own advice. As Chief Justice Chaudhry remarked on Saturday, “No one can claim supremacy over and above the law.” That is advice well worth reflecting on, for it is the court that seemed to make part of the constitution redundant by short-circuiting the disqualification process last week.

Finally, as whispers grow that some kind of quasi- or extra-constitutional arrangement is being contemplated in response to governance woes and in order to oust an unpopular government, the court, in line with its earlier commitment against such interventions, is expected to stand on only one side: that of the law and constitution.

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Comments (32)

wellwisher
June 25, 2012 4:43 am
I think CJ wants to oversee the conduct of the next General Election. Right?
Bakhtawer Bilal
June 25, 2012 11:11 am
Everyone jumps to guns on the very name of corruption. Well, If no one is ready to wait for the end of the president's term, why do not they bring an amendment in the Constitution and and revoke the presidential privileges.
ToThePoint
June 25, 2012 11:09 am
This article is one-sided since it seems to show the SC as the belligerent side. The disqualification of the PM was the right thing to do for the SC since he committed contempt of court by not writing a letter to the Swiss authorities. The law should be equal for all whether you are a PM or not. The Supreme Court did the right thing.!
Zubair Khan
June 25, 2012 12:35 pm
To my view point credit goes to Dawn for bringing out truth boldly. Media is considered well informed and after having smelled through reliable evidence, such opinion is formulated.
Adam Malik
June 25, 2012 6:31 pm
Regarding democratic process Dawn has very principled stance especially the rural populace. Because our main stream media is influenced by urban middle class and they think that rural poplace cant decide rightly. Because urban middle class (whose majority even dont bother to go to polling stations for vote) consider that parliamentarians elected by illiterate and unwise people especially in rural areas are foolish and they dont have right to take policy decision; therefore parliamentarians cant be allowed on policy matters. That was the ground ever used by dictators and now such responisbility will be fulfilled by taking advantage of judicial activism
Iftikhar Husain
June 26, 2012 11:03 am
It is a healthy sign that we are dicussing the problems before it was not possible at all. Supreme court has to do its function honestly and efficiently and tyhe government has do its functions in the interest of the people that is paramount.
irfan sehgal
June 25, 2012 7:53 pm
i toyally agree with Syed Ahmed. Money launderers must be tak en to task Irfan
Muhammad Pervez
June 27, 2012 5:35 pm
Jialas or no jialas, it the parliament which is responsible for law making on behalf of people of Pakistan who elect the parliament. The handful of judges who are appointed by government have no business in making overpowering decisions about the constitution or amending constitution.
AbdulahAfridi
July 4, 2012 6:27 am
Forget about the cliche definations of the Pillars of State. Help me understand...and i am talking about common sense once again, forget about the leaglities and procedural nitty gritties...How is it possible that a bunch or bench of APPOINTED judges(chieftain appointed under PCO by a military dictator!) could send a democratically ELECTED prime minister home or jail or to the gallows??? Do they have the mandate and moral/ethical authority to do so...I am not talking about individual good or evil, right or wrong, iam talking about the Principle. Even if the people elected a corrupt person, for example, even then it should be The People who should send him home through (impeachment or no confidence or call for new elections) not a bunch of self righteous judicial activists. It is contrary to the spirit of democracy and the whole idea of "Of the people, By the people"...This was just a Judicial coup, a new version of 582(B) whose legal and ethical and moral legitimacy rests on a '30 seconds' moment of truth!!! are they kidding us???
AHZ
June 25, 2012 2:19 pm
What a precise and factual definition of Pakistani Democracy Drama.
M. Asghar
June 25, 2012 8:17 am
Knowing that the SC is the final interpreter of the legality and constitutionality of things,, tthe editoroal 's one sided tilt with the "so-called Swiss letter" does not help to clarify the things.
Syed Ahmed
June 25, 2012 6:40 am
Shielding money launderers is not acceptable. PM has no choice; he has to write letter Swiss authorities and desist from disobeying the orders and ridiculing the court.
Ijaz Ahmad
June 25, 2012 6:12 am
Can only hope, the message in this editorial reaches our "National Mind" - though it seems unlikely.
K Ahmad
June 25, 2012 10:18 am
Dawn's editorials have always sided with the corrupt Junta and not the Honourable CJ who is the only ray of hope in this country.
asim
June 25, 2012 6:04 pm
Supreme Court is the institution who interpres law and constitution not the Jialas.
ali abbas
June 25, 2012 5:30 pm
I realize sir that you might not be a big fan of Zardari or PPP but one must maintain some degree of impartiality and has some degree of fairness. Lets look at the facts. Mr. Zardari and his late wife were accused of embazzling money in Swiss case during Mr Sharif's adminstrations and everyone knows that it was a highly political move. He was never proven guilty of a single crime but still spend several years in jail. If judiciary wants him charged or to pursue this case they can declare that presendential immmunity doesnt exist. Without settling this issue first how can they ask or expect any govt to act on their request? To suggest that judiciary is somehow inherently correct always and all the time and an elected prime minister must act on every whim of the court is rather rediculous. Let me remind you what an over reaching courts are capable of judicial misconduct also. Judiciary has repeatedly provided cover for dictators throughout the history of Pakistan our current CJ also took oath under the previous PCO. Lets look outside pakistan; Egypt courts have recently delared their elections invalid. So we are to assmue that because court took this decision it has to be correct? rather rediculous dont you think.
imran
June 25, 2012 5:06 pm
Now is the time for all to take a step back, let this pathetic excuse of a government finish its remaining days in power and lets just plan on a free and fair election. Now if Zardari tries to manipulate with the election process then take him out with whatever activism we need, judicial or otherwise.
Sahrma
June 25, 2012 4:17 pm
we have already seen a Judicial murder. It cannot be worst than that!!!
ali abbas
June 25, 2012 3:58 pm
I do not believe that any unbiased person can claim that our judiciary is balanced. People crying of corruption in federal govt do not seem to give any clear example where a case has been fairly tried and a member of the federal govt has been found guilty. This is saying a lot given the hyperpolitical state of our judiciary that they have not found anyone guilty of any such corruption. They found a legal loophole which is dubious at best to kick out a unanimously elected PM of Pakistan. Court have the power to intrepret law but not to act above the law.
Jpy
June 25, 2012 8:20 am
Judiciary should not overstep its boundaries and show restraint. That is the only option available now. Othewise democracy will be butchered by the same people who are supposed to be its guardian angels
Tariq
June 25, 2012 1:01 pm
Here is a question I would have asked the CJ if I had been there: Your Honor, as you know, military dictators in the past have used the concept of a provisional constitutional order (PCO) to manipulate the judiciary. Do you think any person who agrees to take an oath of office uder a PCO should be disqualified from ever holding a judicial office in Pakistan. I wonder how the hypocrite would have responded.
Deb
June 25, 2012 8:26 am
We might see the first judicial coup in the history of Pakistan.
sharma
June 25, 2012 4:10 am
the constitution is the source of weakness of democracy in Pakistan. It has been twisted out of shape by successive Dictators. The government should take the main opposition that is Nawaz Sharif into confidence and chart out a sure path for democracy in pakistan. Fighting between politicians wont hemp at this stage.
Talpur
June 25, 2012 4:18 am
Great editorial! But I think it needs to be much more direct on who needs to follow the law and the constitution. I mean all the articles of the constitution.
Shahid
June 25, 2012 4:50 am
Problem with editorial is that it conceptualizes SC as a political actor not the final arbitrator under the constitutional scheme. Even if one accepts it as such, while it offers a 'commonsensical advice' to SC, it simply deprives the other side--government from a similar sane advice. Rather it appreciates govt for showing remarkable restraint on disqualification of Gilani.
mustafa
June 25, 2012 2:46 pm
I would disagree, listen to what an Indian supreme court judge said in BBC Urdu interview. He even called supreme court's decision of disqualifying prime minister as extra constitutional. He is not a lay man, he used to sit on the highest court in larget democracy. Indian supreme court is famous for its activism. Even during Indra Gandhi's emergency indian supreme court did not disqualify her from her office, ultimately she lost the elections. We can see people were better judge, though she apologized for her mis adventure, but people did not pardon her.
Ali
June 25, 2012 9:51 am
what is democracy in your terms. Is it complete freedom to corruption, lawlessness and "share in corruption for all"
Badar
June 25, 2012 9:55 am
I am really sad to read this editirial. I cannot believe that DAWN can even think of such conpiracy theories and has such hatred against the Chief Justice and Supreme Court. Its tragic for sure.
Ehsan
June 25, 2012 10:30 pm
We have already seen one Judicial Coup by expulsion of Gilani.Whatever the real coup makers want will be obeyed again.
Margret Simpson
June 25, 2012 11:07 pm
It would be interesting for the prime minister to ask a foreign government to punish our president. We have no power to system to punish our criminals, please do that for us???
Althaf
June 25, 2012 11:34 pm
The CJ also said that no laws can be made which is against Islam. But who is going to determine whether it is against Islam? This just means that the supreme court gets to be the arbiter of what is Islamic and what isn't. This will further politicize judiciary. From a person who started out as a hero, we may well end up with the worst CJ in history.
Shahid Shakur
June 25, 2012 11:48 pm
The editorial, with respect, appears subjective and has an element of bias when it says “in the face of unprecedented activism by the court, the government has by and large remained unprovoked”. Well, hasn’t the Government by conduct shown contempt for the court decisions – could such a conduct be termed as unprovoked? Please remember “… Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them”. [AH F.78]
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