Alexander Hamilton, one of the founding fathers of the US, famously wrote the following to maintain the distinction between judicial and political decisions: "the complete independence of the courts of justice is peculiarly essential in a limited constitution". As widely anticipated the Supreme Court of Pakistan has struck down the Contempt of Court Act (CoCA) 2012 declaring it unconstitutional, void and non est factum. That the raison d'etre for this piece of legislation was to provide protection to the incumbent prime minister against similar action as suffered by his predecessor was obvious. As such this was a situation and personality-specific legislation that sought to stave off the repercussions of non-compliance with court orders. This is apex court's cardinal responsibility to adjudicate on acts passed through the political system by parliament. That the Supreme Court cannot initiate a bill or an act is a universal truth such as 'the sun rises in the east and sets in the west'. There is no difference of opinion on the parliament's right to legislate and the court's to interpret such legislation and determine its validity on the touchstone of constitution. That is what precisely has happened in the instant matter. CoCA 2012 was essentially in two parts; the first part dealt with granting immunity to a select group of officials/office holders from proceedings under Article 204 of the constitution and the second part laid out an elaborate appellate procedure against contempt of court conviction. It is, however, interesting to note that the law in its entirety has been declared to be in violation of the constitution although it was generally felt that the second part does not suffer from the same mala fides as the first part and the concept of severability may come into play. The court has dealt with this aspect too and held that what remains is inextricably linked to the part declared invalid that it cannot independently survive. Reports have said that the government has decided to file review petitions against apex court's judgements in relation to the cases of new contempt law and the NRO implementation. But the PPP-led coalition government, in its prompt response to the SC judgement on the new contempt law (CoCA) 2012, had reportedly decided to introduce another draft of legislation in parliament on the issue of contempt of court with a view to insulating prime minister against a contempt conviction. This is bound to generate another round of litigation on the constitutional validity of the new law and if that law is struck down too, then the parliament is at liberty to frame another law. The question, however, is for how long can we have a stand-off between the judiciary on one side and the executive with the parliament firmly behind it on the other without precipitating matters to a point of no return? This is indeed a question that is vexing many in the country that has seen and experienced constitutional deviation much too often. It would indeed be extremely tragic if the system suffers any derailment when the general election is due within months and there is a real possibility that the PPP-led coalition government would become the first in country's history to complete an elected, full five-year term. At the last hearing of the NRO implementation case before the Supreme Court, perceptive remarks made by the presiding judge, Justice Asif Khosa are lens on our failures. Speaking candidly and straightforwardly, he asked the Attorney General for Pakistan (AGP) to find a way out of the current impasse. His remarks, indeed, had raised the hopes of many in this hapless land that some kind of a resolution to the stalemate may be in the offing. As matters stand today those hopes are fast receding unless all parties to the issue pause and take a step back to ponder on where all this is leading to and the possible pitfalls that may well be encountered. This is not the time for brinkmanship but for flexibility, positivity and compromise that was astutely alluded to by Justice Khosa in an open court on 25th July 2012. His concerns - pious and legitimate - underscore the need for making it clear with a view to giving an explanation that serves to clarify and casts light on the fact that judicial decisions involve the application of law to specific circumstances and they have to be made in accordance with the law as made by the Parliament and they have to be made without reference to political belief. More importantly, Justice Khosa seems to have implied - succinctly and passionately - that political decisions are made by those who have been elected to do so. As judges have not been elected by the people, they do not make political decisions.
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