Prime Minister Syed Yousuf Raza Gilani. – File Photo

ISLAMABAD: The government has decided to defend its executive authority in various cases being heard by the Supreme Court.

At a recent meeting presided over by Prime Minister Yousuf Raza Gilani, senior bureaucrats and legal experts discussed how to protect the legal powers of the executive in the Supreme Court. The meeting, the sources said, decided that in future Supreme Court rulings on postings and transfers of government officials the government would take action only after viewing the decisions under the Establishment Code.

They said federal secretaries had been instructed that no posting or transfer would be made under direct court orders until they were adequately vetted under establishment rules.

“In future no posting and transfer at the federal level will be done until a formal summary is duly approved by the competent authority, that is the prime minister,” an official who attended the meeting said, referring to a number of recent Supreme Court orders in the National Insurance Company (NICL) corruption case.

The official said the government would adopt a defiant posture, at least in cases where it would feel its executive authority was being encroached upon.

Justice (retd) Tariq Mehmood, a Supreme Court lawyer, said there was no second opinion that posting and transfer of government officials were the sole prerogative of the executive. However, in all high-profile cases in which the apex court had ordered certain postings and transfers of civil servants, the counsel representing the government never defended this right of the executive.

“I only hear these lawyers and government representatives defending the executive authority in television talk shows and not in the court. Who stopped them from telling the judges that they can't do it,” he said.

However, once an order, right or wrong, was issued by the apex court, the executive is bound under Article 190 to implement it.

He said that in 2000, the US Supreme Court wrongly ruled in favour of President George Bush against Democratic Party's candidate Al Gore and he went on to rule the country for eight years.

On the other hand, he said, the court had to be very careful in passing judgments because in the event of conflict between the executive and the judiciary there would be a constitutional breakdown.

“If the Supreme Court starts taking up suo motu cases on petty issues, for instance whether somebody was in legal or illegal possession of liquor, definitely people will not take the institution seriously. Therefore, all institutions have to act responsibly within the Constitution,” he said.

Another senior lawyer said the country was witnessing extraordinary circumstances with the executive facing a threat to itself and the judiciary desperately trying to establish its credibility.

He claimed that the government would go to any extent to defy the court in the cases relating to the National Reconciliation Ordinance (NRO) and the NICL, because otherwise its survival would be at stake.

He said the government would never write to Swiss authorities to reopen money laundering cases and it would protect Moonis Elahi, a scion of PML-Q's top leaders whose support was vital for its survival.

On other hand, the court would not keep quiet and let the government seep cases like the NICL under the carpet, because that would compromise its credibility. Hence, the court started ordering postings and transfers which, otherwise, fell exclusively in the executive's domain, he said.

He said it would be unfair to judge separation of powers among the executive, judiciary and legislature in Pakistan in view of the Westminster model of democracy.

Replying to a question, the lawyer said although the government had nothing at stake in the PCO judges case, it was yet to de-notify the six judges as ordered by the Supreme Court.

Mohammad Ramzan Chaudhry, a member of the Pakistan Bar Council, said the current trend of trespassing each other's domain by state institutions was dangerous for the country. He said all institutions had to work within their pre-determined jurisdiction, because otherwise there would be chaos where nobody would listen to anybody.