This general recognition is not because of the comprehensiveness of the constitution but the political dimension. It is firmly believed by a large section of the Pakistani intelligentsia that due to the worst political and social polarisation in the country’s history, it is almost impossible to create consensus on a new social agreement.

Therefore preference must be given to the present document. This opinion seems logical, because despite the desperate efforts of two powerful military regimes led by Gen Ziaul Haq and Gen Pervez Musharraf to introduce a one-man system in the country, a new social contract could not be customised. Eventually they had to revive the 1973 constitution.

Unfortunately, they succeeded in putting in certain changes that created more difficulties for political governments, for example Article 63.

The PPP has always claimed credit for efforts to initiate and achieve political consensus amongst political players on broader national agendas. But the consensus achieved under the leadership of Zulfiqar Ali Bhutto to write the present constitution, and the amendments inserted through a reconciliation policy by the present government, are altogether different in their effectiveness.

ZAB made full use of his political brilliance and acumen to bring together all major parties of a broken Pakistan to create the present constitution. That provided a smoother mechanism of governance, contrary to the amendments introduced by the sitting parliament. Some of the new amendments have brought more complexities to the political mechanism of the state.

For many observers, some of these amendments appear to be negating the basic idea of a democracy — a system of governance wherein the citizens elect their government by giving a majority vote to one group or more. That majority rules with a certain authority and consensus is not necessarily required to run the affairs of the state.

In contravention to this idea, after the insertion of these amendments in the constitution, the role of the opposition leader has emerged as one with the appointing authority for some key posts. This role is effective to the extent that some appointments cannot be made without the consent of the opposition leader. On the face of it this may look like a spectacular scheme but in fact it has created problems.

These amendments appear to have been introduced keeping an ideal situation in mind where only two parties enjoy the mandate and trust of the common public in a state. In Pakistan, the situation on the ground is entirely different.

Besides having a hung parliament and coalition federal and provincial governments, we have different opposition parties that don’t trust one another and other opposition parties, which are currently out of parliament, but demonstrate street power and mass support and accuse major political players in parliament of political manoeuvring and underhand deals. This situation is likely to prevail in the future as well.

And so it is that, beyond the expectations of constitution makers, several key appointments have been challenged in court, and serious objections have been raised on the process of appointments of the chief election commissioner, members of the Election Commission, judges, etc.

Thus, even after the insertion of these amendments, the political road map remains murky. The formation of the interim setup is still in the doldrums while the elected parliament is going to end its tenure soon.

In democratic states, parliament, being a directly elected institution is considered the most powerful, effective and sacred body, whereas in Pakistan, contrary to democratic norms, the institutions of judiciary and military are constitutionally considered more sacred than parliament itself, and the constitution suggests strong penalties for lawmakers for impertinent criticism of these two institutions (Article 63-1-g).

Another constitutional anomaly pertains to education. While the 18th Amendment was a very welcome move which gave autonomy to the provinces, and education has been made a fundamental right, the federation has lost its control over the curricula. All four provinces are at liberty to teach according to their own choice regardless of the desperate need to have a standardised course of teaching throughout the country.

In the absence of a uniform curriculum, it is not hard to imagine the situation after a few years. The devolution of education should have been kept to the extent of administrative control and the federal government should have kept full control on the syllabus.

The problem with many liberal and progressive parties is their corrupt and bad reputation and weak and ineffective governance. Due to this they are always under pressure. That is why they have failed to remove the constitutional changes inserted by the dictators.

Legislation is an ongoing process, and in this light the constitution needs improvements and changes to cater to national requirements. Prejudice towards minorities and neglected social classes must be challenged by bringing in prudent and adequate legislation.

The issue of so-called religious provisions introduced through political intrigue by military-led dispensations to enhance their illegal power must be addressed and the constitution made more comprehensive.

The writer is a lawyer.

Twitter: @faisal_fareed

The person accused of committing the crime has no chance to defend himself or claim he is innocent. This procedure often ends up with the victim being beaten to death or seriously injured. The victim of a mob is denied a fair trial and, often, the right to life.

Studies suggest that mob justice is a very complex phenomenon and that its causes lie in poverty, lack of education and unemployment. In Pakistan, the major cause of mob justice is weak and corrupt policing and an ineffective judicial system. These are in addition to the poor enforcement of state laws and the absence of strict punishment for mobsters.

This tendency to seize justice by force is generally seen among less educated or uneducated lower classes that tend to get carried away by rumours or jump onto a certain bandwagon owing to their own frustration with the social system.

A horrific incident of lynching in Sialkot city in 2010 is one example. Two young brothers were beaten to death by a violent mob, for allegedly attempting a robbery, in the most barbaric and gruesome manner. Besides, in Pakistan, an ultra-sensitive religious society, blasphemy is considered a valid enough reason to take the law into one’s own hands.

In December last year, in district Dadu, Sindh, reportedly hundreds of villagers lynched an accused suspected of desecrating the Holy Quran. The mob thrashed the accused to death before setting his corpse on fire after dragging him out of the police lock-up.

Likewise in July 2012, in the town of Chani Goth, Bahawalpur, in a horrifying incident, hundreds of people mercilessly beat a mentally challenged man after accusing him of sacrilege and set him on fire. Both incidents took place in the presence of police officials who were outnumbered and overpowered by hundreds of participants.

These persons were murdered by a violent mob whereas the punishment for desecration of the Holy Quran is life imprisonment under Section 295(b) of the Pakistan Penal Code.

But apart from this worrisome, unfortunate trend, there is another that derives from it and is seen in educated and sophisticated social classes like lawyers and doctors.

Mob or ‘justice’ through force in the legal fraternity is commonly known as wukla gardi. It has always been there but escalated during the restoration of judiciary movement, when a few groups of lawyers began to rebel against the system and started to misbehave with fellow lawyers who were representing the government, and even manhandled them.

This trend has somehow not been eradicated in the bars, and some groups of lawyers, especially in Lahore and Faisalabad, are still involved in threatening, beating, even locking judges of the lower courts in their chambers besides attempting to threaten police officials and common litigants.

The weak law and order situation in the law courts is so bad that the judges of lower courts failed to take action against these groups of lawyers. According to reports in 2012, about 24 additional district and sessions judges wrote to the registrar of the Lahore High Court, requesting their transfer out of Lahore because of ill treatment at the hands of the lawyers. The latter were accused by the judges of harassment and of attempting to obtain undue favours from the courts.

The tussle between journalists and lawyers has also been at its peak since the lawyers’ movement. In August 2009, a group of lawyers belonging to the Lahore Bar Association banned the entry of journalists into the premises of all subordinate courts of the city for showing live video footage of the thrashing of a police official by some lawyers. Dozens of incidents have been reported where lawyers have thrashed journalists.

A leaning also develops where laws may have been very strong but different social classes find it hard to use the rules in their favour as efficiently as some others do, due to the system. This disappointment may have led young doctors of Punjab to stage an inhuman and horrific strike to make compelling efforts to make the provincial government bend to their demands.

Dissimilarities between customs, conventions and state laws are also one of the reasons of forced justice in my opinion. For example, marriages where couples are forced to run away are abhorred culturally in South Asia. In Pakistan these marriages are permitted under the law as they are by Islamic Sharia. Despite this, honour killings involve mob justice.

In 2012, a runaway couple was murdered and their bodies were later found hanging from a tree in district Chakwal. Similarly in the Indian city of Guwahati a female parliamentarian was injured during an attack by a mob of 100 people for converting and contracting a second marriage with a Muslim.

Besides the strict enforcement of laws vis-à-vis the powerful classes by the state there is an urgent need to arrange comprehensive research on the causes responsible for mob justice in Pakistan and to take methods to restrict this trend. Undertaking a thorough analysis of cultural and social diversities, the multiplicity of conventional and social outlooks would help. Otherwise a new and relatively dangerous form of mob justice would be strengthened in the name of the long march.

The writer is a lawyer.

He raised questions about the role of the court vis-à-vis ensuring effective governance in the state instead of concentrating on its basic duty of providing justice.

The PPP chairman essentially wants the Supreme Court to exercise judicial restraint because he feels that the judiciary is interfering in the executive’s domain, and by doing so is affecting day-to-day governance for which his party is under immense criticism.

Do Mr Bhutto Zardari’s views stem from political rhetoric or do they have relevance to the extensive debate on judicial activism and restraint? I think his questions have focused on a very important and sensitive debate in Pakistan. And the need of the hour is to end this debate by taking it to its logical conclusion in a decorous manner.

Judicial activism is an aspect of judicial decision-making, whereby judges allow their personal views on public policy, among other areas, to guide their decisions. The judiciary in Pakistan, especially after it was restored in 2009, seems to have given thought to the definition of the 19th-century German theologian and writer David Strauss.

According to Strauss, judicial activism can be defined as one or more of three possible actions including overturning laws as unconstitutional, overturning judicial precedent and ruling against a preferred interpretation of the constitution.

Judicial restraint, being a rule of interpretation, requires judges to restrict and limit their own power (of judicial review) and to be hesitant to strike down laws, unless they are utterly unconstitutional, and to exercise temperance in interfering with the executive’s affairs.

This philosophy is evident in the way the Supreme Court of Pakistan is seen to discharge its judicial functions. It has used its powers of suo motu and judicial review. This relatively new approach to dealing with matters related to public policy in Pakistan has received a divided response from the media, civil society and politicians.

In fact supporters of judicial restraint believe that judicial activism does not find space in the scheme of separation of powers under the constitution. They say that judicial activism, taken up so frequently by the media, has become routine, and common litigation is more the exception than the norm. They term these as judicial interference in the executive domain and as negating the tenets of a fair trial.

On the other hand, defenders of judicial activism applaud the courts for breaking with the cold approach of judicial restraint. While defending the judiciary they give the inability of the government and poor governance as reasons for judicial interference.

In my opinion, in the presence of over 20,000 pending cases, criticism of the Supreme Court of Pakistan is not without reason. But it would also be wrong to deny the positive changes brought about by the incumbent superior judiciary through judicial activism.

The biggest change that has resulted through judicial activism is the fear of ruthless accountability by the (superior) courts.

This change in the conventional mindset of both the judiciary and public emerged during the movement for the restoration of the judiciary and began to take shape when the Supreme Court retired dozens of judges for taking oath under the PCO despite a restraining order. It paved the way forward when it sent home an elected prime minister after putting him on trial in an open court.

Prior to these events, the courts had always opted to avoid confrontation with the executive especially when a military-led dispensation was in place. Besides endorsing martial law regimes, the courts stuck with ‘judicial restraint’ and were hesitant to interfere in matters related to the top executives.

The adoption of judicial activism by the judges has certainly brought about a huge change in the administrative scheme of the country where the judiciary has emerged as one of the most powerful institutions.

It has helped put powerful and effective checks on the abusive and arbitrary use of authority and powers by the political and civil bureaucracy. Human rights violations have been noticed in a much more forceful and effective manner.

The credit for this change also goes to the democratic governments, an active civil society and a bold, vocal media.

Unlike military governments and previously unreceptive democratic administrations, the incumbent federal and provincial governments have played their role in helping the effectiveness of this judicial activism materialise by endorsing those decisions that would probably not have found mention in the chronicles of historical and flawless legal judgments if coded by those adhering strictly to judicial conventions.

In addition to the executive checks this judicial activism has also strengthened belief in constitutional supremacy. For the first time in Pakistan, political parties and the media firmly believe that any military takeover would no longer find judicial endorsement.

The problem with judicial activism lies in what may be perceived as the judges’ personal views on public policy. There is a danger that sometimes judges, being human, may miss the fine line dividing interpretation and the rewriting of laws.

This has resulted in unease and that is why the supreme judiciary, despite the positive aspects of its rulings, has not been able to avoid criticism as some political parties may see this activism as unwarranted and unnecessary interference in the administrative and economic affairs of the state.

The writer is a lawyer.

faisalkimail@gmail.com

To counter the PAC summons, the registrar has said that his non-appearance has been decided in various full court meetings as the PAC is not competent to scrutinise the accounts of the Supreme Court under the law.

The registrar maintains that his appearance before the committee and accounting for the expenditure would be against the independence of the judiciary.

In addition, a pre-audit system in association with the office of the auditor general has been put in place and all disbursements from the budget of the Supreme Court are audited before and after disbursement

Accountability is much more a moral and ethical issue than a legal issue. In my opinion there is nothing wrong in having these accounts scrutinised by the PAC because the expenditures charged upon the public fund known as the Federal Consolidated Fund are open for discussion in parliament under Article 82 of the constitution.

The decision(s) taken in full-court meetings are not judicial but administrative in nature and they cannot override the constitution and law. The scheme of the constitution unequivocally and unambiguously provides that parliament being the mother institution cannot be curtailed even by judgments of the superior courts and can, in fact, undo judgments by way of legislation.

A parliamentary committee comprising elected representatives and working under the Rules of Procedure and Conduct of Business in the National Assembly cannot be termed as an executive branch of the government.

The constitution prohibits parliamentary debate on the demeanor of any judge of the superior court with respect to the discharge of his duties performed on the judicial side. This constitutional cover is applied — but there is an exception in the case of the judgments of the superior courts.

All judgments of the superior courts become public property after they are announced and can be discussed, scrutinised and criticised in a venerable manner by the public at large.

In these circumstances putting administrative endeavours of judges like monetary sanctions for payments and procurements pertaining to the purchase of books, equipment, transport, stationery, payment of medical bills, etc, under constitutional prohibition would be unqualified and illogical.

The ownership of the Supreme Court lies with the ‘political sovereign’ of the state, that is the Pakistani public. The judges of the superior courts are also public functionaries. Like all other public functionaries they credit their expenses to the public exchequer, which gets filled up by the taxes and revenues paid by the citizens of Pakistan. The government being the custodian of the public exchequer allocates grants comprising millions of rupees to the Supreme Court in annual budgets.

In the last budget the Supreme Court was allocated Rs1.038 billion. Under Article 19-A of the constitution it is the fundamental right of the Pakistani public to know how and where these grants have been spent. The Supreme Court has itself declared that this article empowers the citizens of Pakistan by making access to information a justiciable right rather than largesse bestowed by the state at whim. The court further said that all state functionaries have to understand that in a very real sense, they are employed in the service of the people of Pakistan and are paid for by them.

An in-house pre-audit system in association with the office of the auditor general would not be sufficient to provide transparent and comprehensive information to the public at large, especially in peculiar circumstances where a reference has been sent to the Supreme Judicial Council (SJC) to challenge the appointment of the current auditor general. Besides, there are allegations of financial misappropriations, misconduct, abuse of authority and abuse of his office. The SJC is headed by the chief justice of Pakistan and the registrar is secretary of the council.

Despite one’s faith in across-the-board accountability and the fact that no one is above the law, the idea of calling a judge for questioning before the PAC, in case of any alleged misappropriation, is for the time being far-fetched. This is so especially when the PAC cannot take coercive action against any public functionary and can only make recommendations for necessary action under the law.

Under the constitution and law, I do not see any reason to give exceptional treatment to any public functionary including a judge of the superior court who may be suspected of a misdeed.

I believe in case a judge is suspected or believed to be involved in any illegality he can be severed from the judiciary under Article 209, to ensure that justice remains unsullied, before initiating any legal action against him.

The Supreme Court being the apex court of Pakistan is the flag bearer of accountability in the country but the non-appearance of its registrar before the PAC has led to valid objections and suspicions about the institution which itself is deeply involved in the process of accountability of other institutions at the moment.

If the registrar of the Supreme Court appears before the PAC and gives a detailed account of the expenditures incurred by the SCP it would not only strengthen democratic rule but also establish the respected convention of answerability in the country. Otherwise, there would be no reason to scrutinise other institutions by the Public Accounts Committee.

The writer is lawyer.

The principles of policy do not confer legal rights or provide legal remedies. They are instruments of instruction or general recommendations that are addressed to all authorities in the state to remind them of the basic principles of the new social and economic order promoted by the constitution.

The fundamental rights guaranteed by the constitution have to be enforced by the state, and in the case of their violation the courts are duty-bound to provide legal remedies available under the law.

If in any part of Pakistan there are lapses in ensuring elementary education (in public institutions), if schools and educational institutions have not been created, and there are obstacles to providing free elementary education — for instance, lack of teachers and funds, and schools being blown up — the superior courts can be approached. Or they can take suo motu action against the violation of this right.

The prime objective of these constitutional guarantees is to enable the efficient participation of citizens in the progress of the country.

In this context, merely inserting education in the list of fundamental constitutional rights appears insufficient in the absence of practical steps.

The state of education is appalling in Pakistan. The situation can be gauged from reports that suggest that 25 million children are deprived of education in Pakistan, never mind their constitutional rights. Equally shocking is the fact that every 10th child in the world who does not attend school is a Pakistani.

According to the UN’s International Human Development Indicators, Pakistan spends only 2.7 per cent of GDP on education which comes to less than the subsidy our national airline receives every year.

Female education, especially in the terror-hit areas of Khyber Pakhtunkhwa and Fata, has suffered even more. Some reports indicate that since 2009 over 300 schools have been blown up by the Pakistani Taliban in the area.

The decentralisation of education was done by the previous government. Local governments were given administrative control of schools and the federal government was responsible for planning, policymaking, provision of funds and for enacting laws regarding the curricula, for establishing centres of excellence and determining the standards of education.

The provincial governments were made responsible for overall monitoring and higher education. This arrangement could have existed but none of the provincial governments established a vibrant local bodies system despite the constitutional requirement under Article 140A.

The newly elected democratic government amended the Concurrent Legislative List through the 18th Amendment, and education devolved to the provinces.

Under this new arrangement provincial governments are liable for funding, planning, policymaking and for all other necessary steps leading to the betterment of education in their respective territories.

The provincial assemblies have been given the power to enact laws to regulate educational institutions and develop syllabus and curricula.

This arrangement was put in place with the objective of bringing education systems under effective administrative control and improving the standard and quality of education in the country.

Unfortunately, it has been observed that the provincial governments have miserably failed to establish an effective regulatory system and also fallen short of creating uniform, modern curricula.

Devolution seems to have been introduced without taking its perils into account. Clearly, the framers of the 18th Amendment failed to realise the dire effects of haphazard decentralisation.

In the absence of central control on the curriculum, the standard and quality of education has deteriorated even more and the gap between public and private education (not including the religious seminaries) is increasing day by day.

In line with this constitutional change, where the devolved departments and powers of local government are concerned, the chief ministers are exercising financial and other control according to their own discretion.

The best way to provide uninterrupted and comprehensive education is to administer it through the local bodies system.

It is important to note that devolution and decentralisation of administrative controls is imperative for the provision of effective education but at the same time no state can afford numerous educational systems at the primary level.

In Pakistan we must have a uniform curriculum at the elementary level in order to prepare a sound academic foundation and reduce the intellectual divide.

Education being the most important fundamental right needs to be treated with utmost seriousness. The government must rebuild the schools of Fata and Khyber Pakhtunkhwa and make arrangements to provide free and compulsory education all across Pakistan.

The immediate and unhindered provision of education is a constitutional responsibility of the state and its organs. Meanwhile, the blowing up schools is an attempt to abrogate Article 25A of the constitution. And abrogation is defined as high treason liable to punishment under Article 6 of the constitution.

The writer is an advocate.

In his Aug 11, 1947 speech, Mohammad Ali Jinnah delivered a message of freedom to not just Muslims but also the minorities living in the country.

Assuring them of equal status, he said famously: “You are free; you are free to go to your temples, you are free to go to your mosques or to any other place or worship in this state of Pakistan. You may belong to any religion or caste or creed — that has nothing to do with the business of the state.… We are starting in the days where there is no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another. We are starting with this fundamental principle: that we are all citizens, and equal citizens, of one state.”

Following this vision, the first Constituent Assembly adopted the Objectives Resolution which said that “adequate provision shall be made for the minorities to profess and practise their religions and develop their cultures.”

It added that there would be “guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality”. There were meant to be “adequate provisions … to safeguard the legitimate interests of minorities
and backward and depressed classes”.

Was it sufficient to merely pass a resolution and include the rights of minorities in the constitution while doing little to actually put such ideals into practice? What steps did the state take to make the nation aware of the rights of those who are in fewer numbers?

The hard fact is that constitutions or laws cannot change societies or deliver on intentions unless they have social acceptance and the full backing of the state. This is what has led Pakistan to the current pass in terms of its minorities.

The bitter reality is that the state machinery has, since its creation, miserably failed to protect minorities’ rights. While on the one hand governments have been enacting rosy-looking legislation, on the other they have failed in practice to create a consensus policy agenda on minorities’ status within Pakistan that would create a more conducive national mindset. In
fact, they have remained involved in painting and treating minorities as unequal.

Article 5 of the constitution states that loyalty and adherence to the constitution is the basic responsibility of every Pakistani citizen. Not only does the constitution extend equality to citizens regardless of caste or creed, under Article 36 it also imposes upon citizens and the government the responsibility of safeguarding the legitimate interests of minorities.

This includes due representation in the federal and provincial services as well as social and economic justice and equality for minorities in the eyes of the law. Practically, however, minorities are disempowered. Contrary to the Quaid-i-Azam’s vision and constitutional bindings, the state has been unable to ensure minorities’ vibrant participation in state affairs.

How many non-Muslims have been promoted to higher bureaucratic posts? How many non-Muslim police chiefs or chief secretaries and secretaries have there been during the past 65 years? How many members of minority communities have been inducted into the Pakistan Army and promoted to top ranks?

What additional qualities do our Muslim politicians possess so that the prime minister and president of Pakistan can be chosen from amongst them, and amongst them alone?

At the moment, there is not one judge from the minorities amongst the superior judiciary in any of the four provinces, the Islamabad High Court or the Supreme Court. Does Article 36
of the constitution not apply to the courts? Pakistan needs reminding that its proud judicial history includes people such as Justice A.R. Cornelius and Justice Dorab Patel.

The buck doesn’t stop with the state. A lack of tolerance of other sects and belief systems has seeped into not just the minds of state functionaries, but also of private citizens. The extent to which most of the population is discriminatory towards minorities is nothing short of amazing.

The electronic, print and social media, too, particularly in Urdu and the regional languages that most of the citizenry taps into, have by and large served to entrench intolerance and foment religious hatred. Cases involving minorities or religious matters, especially allegations of blasphemy, are often misreported or reported with sensationalist overtones. An issue
as serious as sectarian killings is treated as newsflashes to be followed by spice-laden gossip masquerading as informed analysis.

The sum effect of such influences was encapsulated in the murder in broad daylight of a governor in office by a man on his own security detail.

Where does the answer lie? A reasonable place to start is the education sector: everyone should have access and the curriculum should be cleansed of anything that gives rise to prejudice against religious or other minorities.

Religious and sectarian tolerance needs to be taught as a school subject and in military and judicial academies. Concurrently, Pakistan needs strict state action whenever cases of forced conversions come up and in incidents of religious and sectarian hatred.

The state must adopt basic measures and teach people how to live in harmony in the true sense with people belonging to other castes and creeds.

The writer is an advocate.

The latter saw a petition being filed in the LHC challenging the dual offices of the president.

The LHC declared in its judgment that “the duties and functions of the President of Pakistan are to be discharged by him with complete neutrality, impartiality and aloofness from any partisan political interest”. The court felt the need to further probe the matter as the president continues to retain the office of PPP co-chairperson and Pakistan’s president in violation of the judgment.

The bench seems to have accepted that the proceedings pertaining to the commission of civil contempt do not fall within the purview of Article 248(2) of the constitution that prohibits any criminal proceedings against the president. The next date of the hearing is Sept 5.

The LHC took note of the matter by invoking the principle laid down in the Yousaf Raza Gilani case, in which the prime minister was disqualified for not abiding by the Supreme Court’s directions. There is a slight but meaningful distinction between the two cases. Civil contempt of court means the ‘wilful flouting or disregard of the court’s order or direction’. In the Mubashar Hasan case that led to the contempt of court conviction against the former prime minister, the Supreme Court had passed an unambiguous, direct order to the federal government in paragraph 178 of the judgment. But the Lawyers Forum case was disposed off without issuing any binding direction to the president.

In paragraph 39 of the judgment it was expressed that “consequently it is expected that the President of Pakistan would abide by the foregoing declaration of the law to disassociate, himself from political office at the earliest possible” and further expressed in paragraph 40 “that the President of Pakistan would cease the use of the premises of the presidency for the purpose and political meetings of his party”. It seems as if the “expectations” expressed in paragraph 39 of the judgment have been considered as binding directions to the president and the court has started contempt proceedings by taking exception to the “non-fulfilment” of these “legitimate expectations”.

In my opinion where no direction or order had been passed to the president, the institution of the charges of civil contempt of court is legally unqualified. Charges of civil contempt would demand that there be a legally binding order or direction to the president. In the absence of any such direction by the court, the question of wilful flouting and disregard of the court’s direction or order does not arise. In addition, the argument that charges of civil contempt of court do not fall within the prohibition contained in Article 248(2), loses its worth on two basic points: first, the mere use of the term ‘civil contempt’ does not alter the criminality of contempt of court. Secondly, the law defines that the contemnor shall not be punished, unless the contempt committed by him is one which is substantially detrimental to the administration of justice or which scandalises the court or otherwise tends to bring the court or the judges into hatred or ridicule. This kind of contempt is generally known as criminal contempt of court.

In other words, the law does not provide punishment for civil contempt of court by itself. This is the reason why former prime minister Yousuf Raza Gilani always says that he was charged with civil contempt but implicated for criminal contempt without being charged for the latter.

The procedure provided in the Contempt of Court Ordinance 2003 (since repealed but under which proceedings against the president’s dual office were initiated) is criminal in nature and does not provide a separate process to deal with cases of civil contempt.

The Pakistani president, unlike the prime minister, enjoys absolute immunity from the initiation and continuance of criminal proceedings during his tenure in office. This immunity is accepted by the legislature as it has not been amended, altered or repealed although there were 20 major amendments to the constitution. In such a situation to ensure the issuance and compliance of court proceedings, the LHC will have to tackle the constitutional impediment of Article 248(2).

The tussle between the civil organ of the executive and judiciary is causing harm to the parliament and democratic system. It has changed the outlook of the separation of powers embodied in the constitution. The courts may appear poised to adopt the role of the Council of Revision (a body, including judicial representatives, for revising all new legislation made by the New York State Legislature, back in 1777, but never adopted by the framers of the American constitution), under the power of judicial review.

The interpretation of the constitution should be just that — interpretation. It should go no further otherwise it can be seen as an attempt at rewriting the constitution. In the current situation, there may not be the kind of opposition that would have been expected under normal conditions because the civil organ of executive, due to its incompetence and corruption, has lost support amongst the common public. But the judiciary should tread carefully lest in its enthusiasm to be the benefactor of the public it harms the constitutional system.

The writer is an advocate.

The sentence was immediately served upon the prime minister, but an observation made in the order has brought the country to the brink of political mayhem, despite the fact that the detailed judgment is yet to be announced and the prime minister has a legal right to appeal against this order.

For the average reader the question is very simple: does the prime minister stand disqualified after being sentenced by the SC or not?

My opinion is that legally and constitutionally the prime minister cannot be disqualified even if he were to have received the maximum punishment of six months under the Contempt of Court Ordinance, because after the 18th Amendment, any parliamentarian who has been awarded at least two years of punishment by a court of competent jurisdiction can be disqualified from being a member of parliament.

Therefore we have a controversy arising from the observation by the honourable bench regarding the disqualification of the prime minister.

The honourable judges rightly restrained themselves from entering the realm of parliament and left this issue to the discretion of the Speaker.

The procedure pertaining to the disqualification of members of parliament provided in the Pakistani constitution, gives absolute power to the Speaker of the National Assembly to determine the existence and veracity of any such ‘reason’ that has emerged for the disqualification of any member of parliament.

It is a legitimate expectation to see the SC deliver a judgment that is beyond criticism. In this case, the verdict did not meet this expectation. In my opinion, instead of clarifying an already complicated situation in an explicit manner, this order has caused confusion, which has also resulted in political chaos.

In the criminal justice system, the conclusion of a trial has to be definite and exact to the charge-sheet and not go beyond that as what appears to have happened in the prime minister’s case.

The honourable prime minister was charged for wilfully flouting and disregarding the court’s order (civil contempt of court) passed in the Mubashar Hasan case (PLD 2010 SC 265) but he has also been observed for hindering the administration of justice and ridiculing the judges or judiciary (criminal contempt of court). This inference is well beyond reasonable legal understanding.

The honourable court never levelled charges of criminal contempt against the prime minister but squarely fixed these charges on him without giving him ample chance to defend him.

If the SC during the trial realised that the prime minister was involved in ridiculing the judiciary or causing hindrance in the administration of justice, then the SC should have altered the charge-sheet accordingly.

Additionally, the execution of sentence in such an abrupt manner appears to be in violation of the fundamental principles of natural justice and the general principles of criminal law.

In my opinion, the sentence should have been announced as suspended in accordance with the general rule provided in the Criminal Procedure Code under which the sentence shall not be executed until the expiry of the period prescribed for making an appeal against such a sentence.

Modern jurisprudence has no place for rhetoric and populism and if we as nation keep on submitting to rhetoric, we will no longer be in sync with the political and legal philosophy of the rest of the world.

The writer is an advocate.

faisalkimail@gmail.com