Playing with Law
Rizwan Ghani
Saturday, August 18, 2012 - When lawmakers start playing with the law instead of upholding it, they ought to face the book. The admission of Federation’s lawyer in the court and the government’s decision to file an appeal against the annulled 2012 Contempt of Court Act (CoCA) shows that parliament, executive and the legal establishment have colluded to save corruption ahead of scheduled NRO hearing. The Supreme Court therefore had no choice but to scrap the Act under its constitutional right of judicial review in a written constitution in which the judiciary can review and cancel illegal government legislation.
The Act was an attack on judiciary. Contrary to media spin, the judiciary did not take away parliament’s legislative powers nor make new law. The 2003 CoC Ordinance had to be revived to avoid any ambiguity on the CoC rules ahead of 8 August NRO hearing. An attempt was made to redefine judge in violation of many articles of the Constitution including laid down procedure to amend the article. The change in Transfer of Proceeding subsections was declared unsustainable because it curtailed the judicial powers protected under basic structure of the constitution. The present parliament is not a constituent assembly therefore it has no such powers. CoCA is failure of trichotomy of power and democracy. The parliament (president, PM, Cabinet and lawmakers) is trying to contain the powers of judiciary in the trichotomy of power. The ‘checks and balances’ system in parliamentary form of government allows judiciary, parliament and establishment 33 percent share each. It empowers judiciary to interpret laws, parliament to make laws and the executive force but no power to make or interpret laws. Pakistan’s written constitution gives judiciary superiority over parliament and the establishment. It is also superior due to its fundamental right of interpreting constitution and power of judicial review. Therefore, lawmakers should respect constitutional rights of the judiciary in a democracy.
The Election Commission of Pakistan (ECP) should uphold the rule of law to protect democracy. ECP should clarify as to how lawmakers can legislate on CoCA and other issues that are not part of their 2008 election party manifestoes. PPP and its allies could never have won the election if they had declared to protect corruption, make judiciary subservient to parliament and usurp powers of establishment in their manifestos. It is therefore the constitutional obligation of the ECP to hold executive (president, PM, cabinet, parliament and their political parties) accountable for violating party manifestoes, deceiving voters and public’s faith in democracy.
There is a need to review immunity of lawmakers and office holders. Pakistan has been held hostage to immunity clauses protecting corruption and corrupt individuals. According to our Sharia based constitution no one is above the law and there cannot be immunity for anyone. There are many judgments including 1975 Justice Hamoodur Rahman’s under which there is no immunity for head of the state under corruption charges. PPP cannot interpret constitution and give its president immunity. PPP doesn’t want to plead immunity in NRO case because it will tantamount to admission of corruption so they are using CoCA to secure future blanket immunity for itself and its allies. The president has to plead immunity because it is not automatic. The court should not allow any bill/act giving blanket immunity to fight corruption.
Individuals not the judiciary are undermining parliament. The judiciary is oath bound to uphold law on corruption and independence of the judiciary for effective democracy. It cannot allow corrupt to get away under the doctrine of justice delayed is justice denied. The judiciary cannot show latitude to avoid setting legal precedence of two justice systems -one for the powerful and the other for the weak- in which justice is put on hold for the powerful. The parliament will have to respect judiciary to regain its due standing in the public. EU has warned Romania to respect independence of judiciary after reports of parliament’s tyranny against state institutions.
Politicians want a weak judiciary to avoid accountability. They don’t want to be held responsible for stealing billions in taxes, loan write offs, stashing billions in $21tn offshore tax havens, mega corruption scandals, and issuing ordinance facilitating black-money laundering. Iceland’s PM has been given a two-year sentence. Egypt’s energy minister has been given 15- year jail term for signing a gas deal for undermining economic and national interests. Mongolia’s ex-president has been imprisoned for four years on corruption charges. Likewise, our politicians have been holding dual nationalities, multiple offices and drawing salaries simultaneously as lawmakers from the treasury. This is abuse of power, clash of interest and gross violation of government salary and pension rules.
Judiciary needs to be assertive in a democracy. Gone are the days when martial law would come and the elite would get away with their crimes against public, state and the Constitution. The fact of the matter is the US president has no immunity because he is not a member of Congress. The world would have been much safer and prosperous if the Supreme Courts had stopped rulers, bankers and corporations for violating their constitution, international conventions and human rights. Finally, if there were an independent judiciary in France, the French parliament could not have passed a 1789 law authorizing rulers to shift six million buried French into a underground ossuary called Empire of Dead (Catacombs of Paris, Wikipedia). Their bones and skulls line the ossuary that lies under modern Paris and the French have to buy tickets to pay respect to the bones of their ancestors ‘democratically’ distributed in piles, quarries and columns. So much for the independence of parliament.
The Act was an attack on judiciary. Contrary to media spin, the judiciary did not take away parliament’s legislative powers nor make new law. The 2003 CoC Ordinance had to be revived to avoid any ambiguity on the CoC rules ahead of 8 August NRO hearing. An attempt was made to redefine judge in violation of many articles of the Constitution including laid down procedure to amend the article. The change in Transfer of Proceeding subsections was declared unsustainable because it curtailed the judicial powers protected under basic structure of the constitution. The present parliament is not a constituent assembly therefore it has no such powers. CoCA is failure of trichotomy of power and democracy. The parliament (president, PM, Cabinet and lawmakers) is trying to contain the powers of judiciary in the trichotomy of power. The ‘checks and balances’ system in parliamentary form of government allows judiciary, parliament and establishment 33 percent share each. It empowers judiciary to interpret laws, parliament to make laws and the executive force but no power to make or interpret laws. Pakistan’s written constitution gives judiciary superiority over parliament and the establishment. It is also superior due to its fundamental right of interpreting constitution and power of judicial review. Therefore, lawmakers should respect constitutional rights of the judiciary in a democracy.
The Election Commission of Pakistan (ECP) should uphold the rule of law to protect democracy. ECP should clarify as to how lawmakers can legislate on CoCA and other issues that are not part of their 2008 election party manifestoes. PPP and its allies could never have won the election if they had declared to protect corruption, make judiciary subservient to parliament and usurp powers of establishment in their manifestos. It is therefore the constitutional obligation of the ECP to hold executive (president, PM, cabinet, parliament and their political parties) accountable for violating party manifestoes, deceiving voters and public’s faith in democracy.
There is a need to review immunity of lawmakers and office holders. Pakistan has been held hostage to immunity clauses protecting corruption and corrupt individuals. According to our Sharia based constitution no one is above the law and there cannot be immunity for anyone. There are many judgments including 1975 Justice Hamoodur Rahman’s under which there is no immunity for head of the state under corruption charges. PPP cannot interpret constitution and give its president immunity. PPP doesn’t want to plead immunity in NRO case because it will tantamount to admission of corruption so they are using CoCA to secure future blanket immunity for itself and its allies. The president has to plead immunity because it is not automatic. The court should not allow any bill/act giving blanket immunity to fight corruption.
Individuals not the judiciary are undermining parliament. The judiciary is oath bound to uphold law on corruption and independence of the judiciary for effective democracy. It cannot allow corrupt to get away under the doctrine of justice delayed is justice denied. The judiciary cannot show latitude to avoid setting legal precedence of two justice systems -one for the powerful and the other for the weak- in which justice is put on hold for the powerful. The parliament will have to respect judiciary to regain its due standing in the public. EU has warned Romania to respect independence of judiciary after reports of parliament’s tyranny against state institutions.
Politicians want a weak judiciary to avoid accountability. They don’t want to be held responsible for stealing billions in taxes, loan write offs, stashing billions in $21tn offshore tax havens, mega corruption scandals, and issuing ordinance facilitating black-money laundering. Iceland’s PM has been given a two-year sentence. Egypt’s energy minister has been given 15- year jail term for signing a gas deal for undermining economic and national interests. Mongolia’s ex-president has been imprisoned for four years on corruption charges. Likewise, our politicians have been holding dual nationalities, multiple offices and drawing salaries simultaneously as lawmakers from the treasury. This is abuse of power, clash of interest and gross violation of government salary and pension rules.
Judiciary needs to be assertive in a democracy. Gone are the days when martial law would come and the elite would get away with their crimes against public, state and the Constitution. The fact of the matter is the US president has no immunity because he is not a member of Congress. The world would have been much safer and prosperous if the Supreme Courts had stopped rulers, bankers and corporations for violating their constitution, international conventions and human rights. Finally, if there were an independent judiciary in France, the French parliament could not have passed a 1789 law authorizing rulers to shift six million buried French into a underground ossuary called Empire of Dead (Catacombs of Paris, Wikipedia). Their bones and skulls line the ossuary that lies under modern Paris and the French have to buy tickets to pay respect to the bones of their ancestors ‘democratically’ distributed in piles, quarries and columns. So much for the independence of parliament.
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