In a surprising move, the Chief Justice of Pakistan has directed the National Accountability Bureau (NAB) to arrest the Prime Minister of Pakistan in the Rental Power Projects Cases HRC No: 7734G of 2009. On 15.01.2013 the Supreme Court of Pakistan over reached its judicial power and all boundaries of its jurisdiction. The court, once again, has usurped the executive powers making investigations in crimes its domain. In its anxiety to gain popular opinion, the Supreme Court has not simply entered into political questions, but moving far ahead to augment Judiciary as a political actor in Pakistan’s already dismal polity. The recent spate of events unfolding as the tenure of the democratic system moving into its transitory phase on March 16, 2013 before the elections draws closer, shows the Supreme Court and the ‘Establishment’ working in tandem to once again derail democracy from Pakistan.
The case HRC NO: 7734-G of 2009 is pending since last three years; NAB is filing reports before the Supreme Court on a fortnightly basis. The timing chosen for the passing of the order makes the political scenario not only potent with grave risks but an interesting read. The vigor with which the present Supreme Court is putting in developing public opinion in its favour, takes us back to 1940s when a fictitious case was authored by Prof. Lon Fuller of Harvard University, the “Case of the Speluncean Explorers”. Justice Tandy one of the judges resonates the voice of the present Supreme Court “What do you think the Supreme Court should do with the Speluncean explorers? About ninety per cent expressed a belief that the defendants should be pardoned or let off with a kind of token punishment. It is perfectly clear, then, how the public feels about the case. We could have known this without the poll, of course, on the basis of common sense, or even by observing that on this Court there are apparently four-and-a-half men, or ninety per cent, who share the common opinion. This makes it obvious, not only what we should do, but what we must do if we are to preserve between ourselves and public opinion a reasonable and decent accord. Declaring these men innocent need not involve us in any undignified quibble or trick. No principle of statutory construction is required that is not consistent with the past practices of this Court. Certainly no layman would think that in letting these men off we had stretched the statute any more than our ancestors did when they created the excuse of self-defense. If a more detailed demonstration of the method of reconciling our decision with the statute is required, I should be content to rest on the arguments developed in the second and less visionary part of my brother Foster’s opinion”.
This was in fact the same period when a battle was raging between President Roosevelt and the Supreme Court of United States and the Supreme Court’s emphasis on Public Opinion was made to change not by force but by rationale.
Unfortunately the days of realism were over in judicial annals of common law by 1970s. Why did realism come to end, the Honourable Supreme Court must seriously consider– if it wishes to maintain the stature of the Courts in eyes of the public. From taking up and virtually striking down the Presidential immunity without interpreting Article 248 of the constitution and to sending two elected Prime Ministers home, does not go well with the silent majority?. Pakistan may be suffering from endemic corruption but the manner in which the Supreme Court is taking up the issue is not the answer to the problem.
Democracy is not simply to be read only in the “independence of judiciary”, or for that matter “Rule of Law” in no jurisdiction is assumed to be the sole prerogative of the Judiciary. What is happening in Pakistan is the demolition of democracy in the name of democracy. If we are to assume for a moment that Pakistan has finally created its very own panacea, then it would do well with the people that the wastage of State money on the forth coming elections.
The Asian Human Rights Commission is of the view that the order, directing NAB during the course of the day, to submit investigation reports to the concerned authorities, and to get approved the challans/references against the accused persons and to cause their arrest without any hesitation, gives a clear feeling that investigations in the alleged corruption are not complete. Will the Courts also usurp the right of the accused under Article 10-A (the Right to Fair Trial) and the due process of law?
The Supreme Court must visit the case of Shahnaz Begum versus The Honourable Judges of the High Court of Sind and Baluchistan (PLD 1971 Supreme Court 677) His Lordship Justice Humood ur Rehman presided the Bench. One the most outstanding figures Supreme Court has had the privilege to have a Chief Justice. Should the Judgment be reversed?
If the Supreme Court is directing the investigations then who would be judicially reviewing cases?
The AHRC urges upon the legal fraternity to join hands against any step which may disrupt the democratic process in Pakistan. If the democratic process is trumped Pakistan and its people will suffer colossal political damage which in the current geo-strategic situation the leadership of Pakistan will not be able to handle. There are chances of Pakistan moving in to dysfunctional state.
