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An avoidable collapse

After Justice Iftikhar Mohammad Chaudhry’s departure from the Supreme Court (SC), we haven’t seen the SC initiating any suo motu actions. While at times Justice Chaudhry’s suo motu actions were faulted for interfering in the administration of the state, the fact is that such actions sometimes become necessary courtesy the way our governments administer the state.

Take for instance, the levy of Gas Infrastructure Development Cess (GIDC), electricity tariffs approved by Nepra, fuel oil prices approved by Ogra, General Sales Tax, Capital Gains Tax, and now the Luxury Tax imposed by the Finance Ministry; they remain the subject of petitions filed in high courts or the SC, reflecting on the sense of responsibility of the government.

Now a number of criminal cases have been filed against the Prime Minister and his cabinet colleagues. In the history of Pakistan, rarely were so many cases filed against a PM and members of his cabinet, for crimes that include acts of terrorism, which proves that fear of suo motu action was a deterrent that prevented governments from acting irresponsibly.

Such judicial action, though not defendable unless it was completely unbiased and taken purely to prevent mal-administration, partisanship and corruption, or violation of the basic human rights enshrined in the constitution, became necessary because changes in the constitution bestowing the parliamentarians with almost absolute authority do encourage acts of irresponsibility.

In 1985, during General Ziaul Haq’s brand of democracy, changes were made in Article 66 that afford the lawmakers absolute authority. What is amazing is the fact that, despite Zia’s rule being criticised for its dictatorial profile, these changes continue to be part of the constitution although, since then (except during 1999-02), Pakistan remained under democratic dispensations.

Article 66 (1) says that “subject to the constitution and to the rules of procedure of the parliament, there shall be freedom of speech in the parliament, and no member shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the parliament, and no person shall be liable in respect of the publication by or under the authority of the parliament, of any report, paper, votes or proceedings.”

Although Article 66(1) provides unlimited immunity to the parliamentarians for whatever they say or do in the parliament, it is incomprehensible that this immunity provides them the freedom to tell lies. Were that (shockingly) to be the case, the parliament would forsake its status of “legislature”, and the sanctity its members very vocally claim almost every day.

It is worth asking why the parliamentarians need such immunity. Are they afraid of being questioned for their conduct? Can those who need immunity, set examples that should be followed by their electorate, and can such a forum make laws that would be just and fair? Only those who know that their actions may be less than moral, and therefore questionable, need such immunity.

Article 66 (2) says that “in other respects, the powers, immunities and privileges of the parliament, and immunities and privileges of the members of the parliament, shall be such as may, from time to time be defined by law and, until so defined, shall be such as were immediately before the commencing day, enjoyed by the National Assembly of Pakistan and the committees thereof and its members.”

This article provides a bit of relief because it says “that immunities and privileges of the members of the parliament, shall be such as may, from time to time, be defined by law.” Hopefully, the term “law” implies the law that applies to everyone, and if that is so, telling lies is a crime even for the parliamentarians, and hence they are punishable like the ordinary citizens.

The Lahore High Court’s (LHC) one-judge bench dismissed a petition seeking disqualification of the PM although, despite assigning the Chief of Army Staff (COAS) the role of a ‘mediator’ in the ongoing political crisis, he denied having done so before the parliament. The reason cited by LHC was that the PM’s conduct fell within the ambit of “political questions”, and hence wasn’t “justiciable”.

Now this petition is being heard by a 3-judge bench of the SC headed by Justice Jawwad S Khawaja. On October 1, the court turned down a plea for constitution of a larger bench to hear the case although the counsel for one of the petitioners pleaded that “some of the judgements of Justice Jawwad S Khawaja have compelled the members of the bench and the bar to express serious reservations against the said decisions.”

During the continued hearing of the petition by the same bench, Justice Mushir Alam reportedly asked the petitioner to consider the “fetters” the Constitution has placed [on the judiciary] to protect the parliamentarians under Article 63(p), because a parliamentarian cannot be disenfranchised unless convicted by a competent court of law. Isn’t the SC the ultimate competent court of law?

According to press reports, during the hearing of this case, Justice Dost Mohammad remarked that it would be difficult for the court to decide the matter unless tangible evidence – deposition by the COAS as witness, or an affidavit signed by him – was brought before the court, because the COAS alone can confirm or deny the version based whereon the petitioner was agitating.

It is well known, that the Director Inter-Services Public Relations (ISPR) had issued a statement denying what the PM claimed before the parliament. To-date, that statement of the Director ISPR hasn’t been denied by the COAS; impliedly, Director ISPR’s statement is true. Besides, is it possible that Director ISPR will issue a statement on behalf of the COAS without the consent of the COAS?

While we keep hearing unpleasant remarks about the inconvenience cause by blocking of three out of four lanes of the Constitution Avenue, this inconvenience is of no significance if one bothers about the long-term damage being caused to the country’s image by the ongoing political crisis; it mandates re-establishing the credibility of the rule of law to put the house in order.

Any distortions in dispensation of justice that convey the impression that individuals, not the state, reign supreme, may trigger a bloody revolution – the most destructive and expensive route to putting the house in order. Forestalling revolutions requires dispensing completely unbiased and forthright justice, which is the need of the hour to put the house in order.

Pakistan faces the challenges posed by security risks, falling competitiveness of its economy, and after-effects of environmental disaster. The last thing it can afford is prolonged collapse of its administration – the outcome of the Nawaz Sharif’s insistence on staying in office.

A. B. Shahid, "An avoidable collapse," Business recorder. 2014-10-06.
Keywords: Political science , Political issues , Political system , Judicial system , Suo motu actions , Criminal cases , Human rights , Political classes , Law making , CJ Iftikhar