ISLAMABAD: Days before his retirement, Senate Chairman Mian Raza Rabbani on Tuesday expressed concern over the growing judicial meddling in legislative processes and issuance of a contempt notice to the Khyber Pakhtunkhwa Assembly speaker by the Peshawar High Court.

Speaking in the house, Mr Rabbani said he wanted to relinquish the charge without causing any further rancour between institutions and departments working through or under the Constitution. He also referred to his recent meeting with Chief Justice of Pakistan Saqib Nisar and the visit of Army Chief General Qamar Javed Bajwa to the Parliament House to attend a meeting of the Senate’s Committee of the Whole.

The Senate chairman said that events of the last few days had compelled his conscience to draw the attention of the chief justice, in a spirit of understanding, to a detailed judgement in the matter of Zulfiqar Ahmed Bhutta vs Federation of Pakistan in which the Supreme Court had shown constraint in going beyond the veil of ‘internal proceedings’ of parliament in terms of Article 69 of the Constitution.

Babar warns against ‘judicialisation of politics and politicisation of the judiciary’; PPP distances itself from remarks

Referring to the judgement, he said: “It appears that the Bill was voted in the Senate of Pakistan on 22.09.2017. We have been informed that various amendments to the said Bill were proposed by some political parties, including the retention of the afore-noted proviso to Section 5 of the Order, 2002. It may also be noted that except for the proviso, Section 5 of the Order, 2002 was retained in its original form in the proposed Bill.

“However, it appears that most of the amendments suggested by various parties were not incorporated. The petitioners have vehemently argued that proceedings before the Senate of Pakistan were fundamentally questionable and flawed. However, we do not wish to enter into this controversy in due deference to the provisions of Article 69 of the Constitution especially so where no specific grounds have been urged that may justify probe and scrutiny of the process by which the Bill was passed in the Senate.

“We have gone through the record of debates on the Bill and find that no purposeful debates on the Bill took place in the Senate. Nevertheless, we would not like to delve deeper in the said aspect of the issue.”

Mr Rabbani was of the opinion that such restraint as mentioned in the judgement authored by the chief justice himself needed to be exhibited by high courts, lower courts and judicial and quasi-judicial tribunals functioning under the Constitution or any other law for the time being in force as the judiciary and parliament were not at the cross purpose and the aim of both was to preserve, protect and defend the Constitution.

“It is unfortunate that a contempt notice should be issued to the speaker of an assembly. Similarly, information sought by the Islamabad High Court also infringes upon the well-established concept of ‘internal proceedings’ of parliament. I would have met the Chief Justice of Pakistan to iron out these intra-institutional and intra-jurisdictional issues, but unfortunately the constraint of time does not permit me.

“Nevertheless, the office of the Chairman Senate is an office in perpetuity and that office would like an amicable settlement of these jurisdictional issues in the light of institutional respect and the mandate laid down for each organ of the state under the concept of tracheotomy of powers in the Constitution, 1973. I am confident that my successor will carry this torch even if it means of calling on the Chief Justice of Pakistan again,” he observed.

Unlike Mr Rabbani’s softly worded remarks and talk of the spirit of understanding, Farhatullah Babar, a Pakistan Peoples Party Senator known for candidly speaking on issues on which others opt to be diplomatic and extra-cautious, criticised the judiciary.

In his speech, Senator Babar warned against “judicialisation of politics and politicisation of the judiciary”, “state within the state” and the utter helplessness of parliament to arrest the downslide.

He said he could not applaud the chief justice swearing that he had no political agenda or the judges quoting from poetry instead of the Constitution and the law. “When my village elder Baba Rehamte tells me that the Constitution is supreme I accept it. But when he goes on to also tell me that the Constitution is what he says and not what is written in it then I am appalled,” he remarked.

Mr Babar said that when dignity of courts was upheld by brandishing the contempt law rather than by the force of arguments it was time to ponder. “It will be a disaster if the election year is allowed to become the year of referendum on the judiciary.”

He said he was also pained to see two states — one de facto and the other de jure — often working at cross purposes. The de facto called the shots but refused to submit to accountability, he said, lamenting the failure of parliament to bring legislation for accountability of all, including judges and generals.

The PPP senator said he was distressed that all political parties, including his own, backtracked on the demand for accountability of all with no room for sacred cows. “We must resolve this contradiction of a state within the state if Pakistan is not to be devoured by it.”

He also warned against attempts to roll back the 18th Constitution Amendment and provincial autonomy.

He said he would soon be a stranger to the house and unable to speak here. “But nobody will find it easy to stifle my voice and fight for the cause will not be abandoned,” he declared.

The house will meet on Wednesday (today) at 3.30pm.

Meanwhile, former prime minister and central leader of the PPP Raja Pervez Ashraf termed the statement of Farhatullah Babar in the Senate his personal views and opinion.

In a statement, Mr Ashraf said that whatever Senator Babar had stated in his speech in the house did not reflect the position and policy of the PPP and, therefore, it should be taken as his own views which had nothing to do with the party.

Published in Dawn, March 7th, 2018