• kewal sethi

over reach

in 2012, supreme court of pakistan held the prime minister gilani to be guilty of contempt of court and was removed as prime minister. this article covers that event and was obviously written in 2012,


over reach

india is gloating over the fate of gilani. the general opinion is that a correct lesson has been taught to the politicians. the court has proved its independence. scores are also asking in comments on the news item in times of india why our supreme court is lacking courage to do likewise.

in all this din, the basic issue is forgotten. the constitution of pakistan grants immunity to president during his tenure against prosecution for any criminal act he may have performed. the prime minister gilani was merely following this provision which is very clear. the charges against president were about money stacked abroad. this would obviously be a criminal act. the prime minister refused to follow up on this complaint and he was within his rights to do so. The supreme court did not read this simple provision. there is no ambiguity about it. any other interpretation is for other purposes and not for following the law. it must be stated that supreme court is not ombudsman. it is not there to check corruption or any other moral misconduct on the part of any citizen. it is there to administer law. it is not there to demonstrate its superiority over other wings of the government. it is there to adjudicate.

it can be seen from another angle. sovereignty belongs to the people in the last resort. it cannot be usurped by anyone including the executive and the courts. the people exercise their right through their selected representatives. the prime minister as the head of the legislature represents the people. he cannot he dismissed by nominated or appointed judges, howsoever brilliant they may be.  in this case the very first orders of the court to reopen the corruption cases was against the provisions of the constitution. it was not necessary to obey such an illegal orders and gilani rightly rejected the orders. thereafter it became a matter of prestige for the court to maintain its supremacy. it was not a legal battle. it was ego which drove the supreme court.

take a hypothetical case. the constitution of india was drafted by an assembly which was not universally elected.  it is doubtful if any one elected from areas which now form pakistan and Bangladesh were there. those who represented the people there were left in pakistan. thus crores of people who had to leave these areas and come to india were nor represented in the constituent assembly. still some portions of it are declared as sacrosanct by the court and it was ruled that these cannot be amended by the parliament. just what is the fundamental and what is not is also to be decided by the court. the constitution itself does not talk about any such distinction between different provisions. nor does the constitution  give that power to the court. it was usurped.

which part is sacrosanct. whatever be the opinion of the court, it is clear that the preamble at least would be part of it. it will be recalled that the constitution was amended to make it a socialist republic besides other attributes. the disinvestment in the public undertaking is obviously diluting the socialist pattern as the ownership passes on from the general public to certain individuals who can pay for these. this is definitely against the tenets of socialism which speaks about social ownership of national assets. if someone was to lodge a case in the court that the fundamental provision of socialist state are being tempered with by disinvestment, would the government apologise and get back all the shares from the buyers. and if this is not possible, would the PM be hauled up for such decision?

if there has to be stability, the various organs of government must cooperate with each other and not confront each other. each has been allotted a job and must do that and not encroach upon the rights of others. let each work according to the norms which are acceptable to all. it is not to defend the politician who has today become the very symbol of corruption. but it does not mean that others should take steps to corner them on what is clearly within their domain. those who are called corrupt can be certainly proceeded against under the law. if there is a case for fast tracking such cases this demand exists for all the cases. justice delayed is justice denied. the courts should do this duty sincerely and quickly. this would earn them much more respect than cornering a politician or two.


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