Courting Contempt
By Dr Mohammad Taqi
Florida
“Judicial activism of this second type (where judges feel they know better than parliament what the law should be) is likely to involve judges in political and religious controversies ... this type of judicial activism may lead judges to seek publicity.” — Justice Dorab Patel.
Just when one thought that the honorable Supreme Court (SC) of Pakistan may have extricated itself from at least some political matters thrown in its lap, it has admitted yet another petition where politics, national security and fundamental rights overlap, and not necessarily in a manner that bids well for any of these.
On February 7, 2012 the SC admitted for regular hearing a petition wherein the petitioner Fazal Karim Butt, Advocate, has prayed that the court stop the executive authority from sacking the Chief of Army Staff (COAS) General Ashfaq Parvez Kayani and the Director-General (DG) Inter-Services Intelligence (ISI) Shuja Ahmed Pasha.
The petition had been filed in the wake of the Prime Minister Yousaf Raza Gilani firing the secretary of defense, Lieutenant-General (retd) Khalid Naeem Lodhi, on charges of “gross misconduct and illegal action” and of “creating misunderstanding between the state institutions”. Incidentally, the petitioner in the present instance is also representing the terminated secretary of defense in his suit against the executive authority claiming wrongful discharge.
Mr Butt has alleged that after the sacking of the defense secretary a situation has arisen where the executive authority may now fire the army and ISI chiefs as well. The generals, he presumes, may not take their dismissals in stride and might retaliate by launching a coup d’état leading to a martial law and wrapping up of democracy that would ultimately result in the petitioner’s fundamental rights being suspended. By George, that is a tall order even for a bad dream or as an old Urdu poet would have put it: “Andhay ko andheray mein bohat duur ki soojhi!” (Translation: the blind man amazingly could see really far in the pitch dark.)
Nonetheless, Mr Butt’s very fertile imagination is not the problem. Courts are flooded with frivolous suits by habitual litigants and usually such nonsensical matters are quashed on day one for the sheer frivolity of the exercise. What is of concern is that the honourable Chief Justice (CJ) of Pakistan Iftikhar Muhammad Chaudhry felt that this petitioner had a case, prima facie, which the SC must adjudicate on. It is alarming that in recent cases the honorable court has trampled upon established constitutional principles, or at least obfuscated well-defined matters like presidential immunity and an individual’s liberty, but in this case it deemed tangible the farfetched connection between a hypothetical coup d’état and an imagined vitiation of the petitioner’s fundamental rights. Mr Butt, by his own admission, was acting only on his hunch and rumors in a section of the media. The court has apparently conceded that fantasies can also grant people a locus standi!
It may have been within reason had the court just wished to hear Mr Butt out but even before his petition was admitted, the august bench directed the Attorney General to produce a written statement from Prime Minister Gilani stating that he will not sack the generals. The court effectively impelled the prime minister to an illegal action, i.e. surrender his constitutional power to replace the service chiefs and the ISI DG.
The honorable justices apparently have demanded Mr Gilani to give them what is rightfully not theirs. One is compelled to think that the august court may have allowed the connection that Mr Butt’s fundamental rights could theoretically be breached in case of a putsch because they wish to seize yet another opportunity to remain relevant as a power player — something the late Justice Dorab Patel may have considered as seeking publicity.
The writ jurisdiction of the Pakistani superior judiciary dates back to 1954 and while borrowed from and entrenched in English law, it flows from the Baqi Baloch case in the West Pakistan High Court (WPHC). Mr Baloch — a member of the West Pakistan Assembly (WPA) — had filed a petition with the WPHC challenging the transfer of a piece of territory in Balochistan to Iran, which he claimed had undermined his fundamental rights. Mr Baloch failed to prove that the transfer was illegal or how his rights were breached and the case was dismissed. The court, however, upheld his entitlement to file that writ petition not as a private citizen but on narrower grounds, i.e. only as a member of the WPA.
The current Article 184 of the Pakistani constitution titled: “Original Jurisdiction of Supreme Court”, states:
“(1) The Supreme Court shall, to the exclusion of every other court, have original jurisdiction in any dispute between any two or more Governments.
[Explanation: In this clause, ‘Governments’ means the Federal Government and the Provincial Governments.]
(2) In the exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce declaratory judgments only.
(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article.”
Under the above Article, the SC really has no jurisdiction to intervene in a real or imagined dispute between the army and executive. The august court appears to have taken pains to maintain the imagined breach of Mr Butt’s rights, just to sustain what otherwise was non-justiciable.
The present SC likes to quote from US law and politics and is likely aware that President Barack Obama had fired his commander General Stanley McChrystal in the middle of a war for his irresponsible comments. And yet the heavens did not fall and McChrystal went home without a whimper. This very recent precedent should have been enough for the court to throw out Mr Butt’s petition. At the very least the honorable CJ could have asked the Pakistani generals to submit in writing that they were not plotting any rebellion as the petitioner had alleged.
The perception among many eminent Pakistani and international jurists is that the honorable SC is bent on not giving the civilian leadership a breather. If Mr Gilani refuses — which he must — to give the unlawful undertaking, would he be deemed a contemnor again? By setting up the civvies for failure and virtually precipitating them to court contempt, the judiciary may itself end up courting controversy.
( The writer can be reached at mazdaki@me.com. He tweets at http://twitter.com/mazdaki)
