Implementing the judgment
By Khalid Jawed Khan
Saturday, 30 Jan, 2010
The Supreme Court has given detailed reasons for its short order in the NRO case. While the order was passed on Dec 16, 2009, the government reportedly delayed its implementation until the detailed verdict.
Now that this is available, there is renewed interest in the subject of the implementation of the judgment.
While some in government appear to favour the delay in its implementation the prime minister has publicly expressed his commitment to implement the judgment. However, critics of the government see little progress.
Different views have been expressed regarding the options available to the apex court to have its judgment implemented. It is in this context that some commentators have referred to Article 190 of the constitution and expressed the view that the Supreme Court can seek the aid and assistance of the armed forces for the implementation of its judgment.
Article 190 provides that all executive and judicial authorities throughout Pakistan shall “act in aid of the Supreme Court”. This begs the question as to whether the armed forces are part of the executive authorities.
Article 90 provides that the “executive authority of the federation shall vest in the president and shall be exercised by him either directly or through officers subordinate to him in accordance with the constitution”. Article 91 provides that there “shall be a cabinet of ministers headed by the prime minister to aid and advice the president in the exercise of his functions”. Article 48 provides that “in the exercise of his functions the president shall act in accordance with the advice of the cabinet or the prime minister”.
Article 243 provides that the “federal government shall have control and command of the armed forces”. Article 245 provides that “under the directions of the federal government, the armed forces shall defend Pakistan against aggression or threat of war and subject to law, act in aid of civil power when called upon to do so”.
From these provisions of the constitution, it is evident that the executive power of the federation rests with the federal government. This power is exercised by the president through the cabinet and other officers subordinate to him.
It is argued that the officers of the armed forces being part of the service of Pakistan by virtue of Article 260, are also subordinate to the president. Therefore, the officers of the armed forces could be treated as part of the executive authorities. Thus, being part of the executive authority, the armed forces can be called upon to act in aid of the Supreme Court.
Even for the sake of argument, if the armed forces are treated as part of the executive authority of the federation, there are still problems with it. Article 245, which is a special provision dealing with the functions of the armed forces, specifically provides that “the armed forces shall, under the directions of the federal government act in aid of civil power when called upon to do so”. Thus, the armed forces can only be called upon by the federal government to act in the aid of civil power.
This provision leaves no doubt that only the federal government and no other authority or institution can call upon the armed forces to act in the aid of civil power or institutions.
This interpretation was also affirmed by the Supreme Court in its judgment in the case of the Sindh High Court Bar Association vs the Federation of Pakistan PLD 2009 SC 879. Chief Justice Iftikhar Chaudhry observed: “Let it be clear that any action of the armed forces undertaken without the direction of the federal government shall be unconstitutional.”
In view of the above, it appears that the armed forces can only act to aid and assist the Supreme Court when they are directed by the federal government to do so and not otherwise. Indeed in the year 1996 when then Chief Justice Sajjad Ali Shah had directly sought the assistance of the army and written a letter to then COAS Gen Jahangir Karamat, the latter had properly referred the matter to the defence ministry.
There is another reason for disagreeing with the proposition. As elaborately discussed by the Supreme Court in its judgment in the Sindh High Court Bar Association case, our constitution is based upon the trichotomy of powers.
While the executive, legislative and judicial organs are autonomous in their respective spheres, they can only flourish when they act in harmony. Any interference by one in the sphere of the other leads to conflict and consequent constitutional imbalance. Armed forces fall strictly within the hierarchy of the executive organ of the state. Any directive to the armed forces bypassing the federal government would upset the delicate constitutional balance.
There is yet another reason and no less compelling argument against the proposition. Our constitution does not envisage a situation where the government could conceivably violate or ignore the order of the Supreme Court.
Just as the executive organ is autonomous within its own sphere, so is the judiciary. Interpretation of the constitution and the laws is the exclusive domain of the judiciary. Once the Supreme Court gives a judgment, it is not open to any authority to defy or ignore it. While there is room for criticism of the judgments, there is no room for defiance.[/B]
In case of any attempted defiance or disobedience of the judgment, Article 204 and the law framed there under confer sufficient power on the court to punish any authority or person who obstructs or interferes with its implementation. It is the obligation of all heads of the departments of the government and other civil servants to execute the directives of the court in letter and spirit.
In the event of failure, the court can take coercive action against the concerned officer and ensure implementation of its judgment.
Looking at the past performance of the government, there is little doubt that in the end it will, as Winston Churchill said, do the right thing having exhausted all other options.
