Daily Times Editorial June 20, 2012

Looming judicial tyranny Yousaf Raza Gilani is gone. The incumbent PPP is discussing his replacement. Whoever succeeds Gilani still runs the risk of being subjected to the same pressures from the judiciary as Gilani faced, and which eventually ended in his ignominious departure, not at the hands of the people or their elected representatives, which is the norm in all parliamentary democracies, but at the hands of an activist judiciary that has opened itself up in the process to grave criticism. For the benefit of our readers, let us retrace some of the steps and developments that led to this denouement. The National Reconciliation Ordinance (NRO) was essentially a political deal between Musharraf and the PPP led at that time by the late Benazir Bhutto. It gave relief to over 8,000 people affected by charges of corruption and other misdemeanours, of whom only about 80 were politicians. While the Supreme Court (SC) struck it down on the strict constitutional/legal criterion of being discriminatory, and ordered all closed cases of the beneficiaries to be reopened, its subsequent focus seemed to be on just one of those beneficiaries: President Asif Ali Zardari. Gilani took his stand on the basis of Article 248 of the constitution, which lays down that the president enjoys immunity so long as he is in office. This is a principle that is the bedrock of every constitution known to man. Take the example of French former president Sarkozy. After losing the presidential election, his immunity extended one month after leaving office, according to the French constitution. As soon as that grace period expired, Sarkozy is being hauled over the coals in various cases, including the murky Agosta submarine affair that involves a Pakistan angle. The SC saw fit in its wisdom to ignore all this constitutional edifice despite the argument being presented that President Zardari could be acted against in the Cotecna case after he leaves office. Instead, the SC suggested that if ‘someone’ claimed immunity, he must apply for it to the court (while Article 248 leaves no or little room for ambiguity). The government appeared reluctant to subject itself to an ‘interpretation’ of Article 248 that could open new cans of worms for it, hence its reluctance to pursue the immunity matter in all the proceedings. The SC ordered the chief executive, then Prime Minister Gilani, to reopen the Swiss case despite presidential immunity and the reluctance of the Swiss judicial authorities themselves to reopen the case in the absence of fresh substantive evidence, those being their judicial rules. The insistence despite all these facts by the SC indicated to some circles that some extraneous factor may have crept into these judicial proceedings. Be that as it may, the first casualty of this jurisprudence is a unanimously elected prime minister at the hands of the judiciary. And there is no telling whether he will be the last. It may be noticed in passing that the reluctance of Gilani to file an appeal against his contempt conviction suggests a lack of confidence in the impartiality of the court. This is a serious development with implications for the future. The separation of powers enshrined in the constitution is a reflection of the best practice and constitutional structure from world experience. The framers of the US constitution were clear that individuals or groups could not be relied upon to exercise restraint on the basis of good intentions, therefore checks and balances and the separation of powers was necessary. Every institution therefore is enjoined by this schema to remain within its boundaries and not encroach on other institutions’ turf. Unfortunately, the restored superior judiciary’s activism, unrestrained in some instances by the time honoured principle of judicial restraint, is deleterious for the respect and dignity of the judiciary itself since it opens up the judiciary to debate and controversy. The SC’s overruling the Speaker of the National Assembly can be considered a weakening of the principle that parliament is supreme. In fact, the essence of the verdict against the Speaker’s finding is to declare, at least in the sphere of the issues raised by the case, that parliament’s supremacy is subject to the will, not of the people, but of the judiciary. This is a dangerous chink in the wall of separation of powers construct. Since there is no higher judicial forum than the SC, its verdicts acquire permanence (we may recall the shelf life of the doctrine of necessity to illustrate the point). The US Supreme Court declared: “We are not final because we are infallible. We are infallible because we are final.” Hidden in that message is the thought that if the judiciary does not judiciously impose restraint on itself, the direction in which things may head would alarmingly resemble judicial tyranny.