Sunday, November 18, 2012

Daily Times Editorial Nov 19, 2012

President’s office’s status As predicted in this space when the Supreme Court’s (SC’s) detailed judgement in the Asghar Khan case was released, the observations of the court regarding the status of the president’s office have been challenged by the government in a review petition. What was strange about the declaration by the SC that the president’s office is one in the “service of Pakistan” is that this question was not before the court or even germane to the Asghar Khan case. While castigating the role of then president Ghulam Ishaq Khan in manipulating the 1990 elections to deny Benazir Bhutto’s PPP victory, the court went far beyond the issues before it by declaring the president’s office as one in the service of Pakistan, implying that the restrictions on, for example, taking part in politics until two years after leaving office would apply to the office. It is an interesting piece of jurisprudence for the court to have begun from and based itself on Ghulam Ishaq Khan’s misdemeanours to take a sideswipe at the present incumbent by denying the real character of the president’s office. This is the very issue the review petition takes up, arguing that the president’s office is political, not one in the service of the state. The petition requests the court not to make observations that weaken other institutions. The petition has been filed under Article 188 of the constitution read with the relevant SC rules for a review of the October 19 order in this regard. The government’s contention is that the conduct of the present incumbent of the president’s office was never an issue in the Asghar Khan case, nor was it relevant for a decision in the matter. The petition regards the court’s observations regarding the president’s office as academic or hypothetical, which runs counter to sound juridical precedents. Also, that the alleged activities of the then president Ghulam Ishaq Khan were conducted in his individual capacity and not on behalf of the presidency as an institution. Similar findings in the same case regarding the individual capacity in which Generals Aslam Beg and Asad Durrani conducted their hanky panky and did not imply any involvement of the army or ISI as institutions apply and strengthen the argument of the petitioners. While it is not our place to advise the SC how to approach the review petition, it is within the purview of fair comment on the October 19 order to examine the implications of the court’s observations regarding the president’s office. Redefining an office that is part of parliament, elected by an electoral college of the Senate, National Assembly and provincial assemblies, and always the choice of a political party or parties, as one in the service of the state went beyond the case before the court as well as beyond any known jurisprudential precedent, political philosophy, and parliamentary democratic norms. Such an out of the way observation can only bear comparison with an earlier observation of the court that the theory of parliament’s supremacy was out of date. Overturning the philosophic, jurisprudential and parliamentary democratic principles evolved over hundreds of years cannot do any good to the credibility, respect and dignity of the court nor to the political system. With the greatest respect, a tendency on the part of the restored judiciary to stray beyond its established purview into areas that are either the turf of other institutions of the state under the separation of powers doctrine, or into ‘speculative’ realms that have no solid jurisprudential bases is a disquieting development. In this space we have consistently argued for the time honoured principle of judicial restraint precisely because the honour, respect and dignity of the judiciary is dear to us, as it should be to any citizen of a modern, civilised state based on the rule of law. By straying into areas not strictly and uncontrovertibly within its legitimate purview, the judiciary continues to run the risk of being rendered controversial, a development no one can view with sanguinity, given our judiciary’s chequered past and newfound respect.

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