EDITORIAL: The Bandial Supreme Court’s last-ball-six, as it is being called, has indeed opened a can of worms, as some headlines have suggested.
And while it was, and is, pretty clear that the PDM (Pakistan Democratic Movement) government legislated amendments to the national accountability ordinance to protect its own leadership – with the help of a toothless opposition, of course – the fact remains that the last judgement of now retired chief justice Umar Ata Bandial concerns not just those machinations in parliament but rather the authority of that august house as well.
That is why Justice Mansoor Ali Shah’s rather strong-worded dissenting note stands out, categorically claiming that the majority judgement “has fallen short to recognise the principle of trichotomy of powers, which is the foundation of parliamentary democracy”.
One would have thought that the crux of the dissenting note – what parliament can do, it can also undo – was rather obvious in a working democracy; hence his lament that the majority has “fallen prey to the unconstitutional objective of a parliamentarian, of transferring a political debate on the purpose and policy of an enactment from the houses of parliament to the courthouse of the Supreme Court”.
This is very serious indeed and this judgement will rattle the country’s political elite for a while; at least till it goes into review with a new chief justice in the chair.
Meanwhile, popular opinion is of course interpreting this decision as the Bandial court’s last favour to Pakistan Tehreek-e-Insaf (PTI) chairman Imran Khan, who petitioned it against the amendments, before it bowed out. There was also a lot of public anger at the sheer opportunism of PDM (Pakistan Democratic Movement) lawmakers for hijacking the house to save their own hides.
The pro-PTI camp, especially, considered the amendments blatantly undemocratic as well because they were carried out when the largest political party in the country was absent from the house. Yet it was PTI’s own decision to resign from the national assembly and, as has been pointed out repeatedly, the proper way to do something about those amendments was to go back and challenge them there.
Now, ironically, yet another supreme court judgement has left the political and legal fraternities even more divided than before, which will exert further pressures on both.
The biggest and most charged political force – PTI – has made a habit of dragging the country’s politics to its highest courts, where some of the senior most judges have had no qualms about leaving their own fingerprints all over the constitution; even as it drove a wedge between the judiciary itself.
All this is not to say that the country should not have comprehensive accountability laws that keep strict checks on anybody and everybody who holds high office. It’s that, as repeatedly argued in this space, those laws are in serious need of a complete overhaul, not piecemeal amendments that suit the needs of the people in power at any certain time.
This drama about the accountability ordinance, despite the SC judgment, has some life left in it yet. Let’s not forget that all shades of politicians, including PTI’s top leadership, hid behind those amendments at one point or another over the recent past. And, all said and done, graft cases will be restored against public office holders across the spectrum.
But is putting the fangs back into NAB, like the old days when it was used as a tool by those in power, the right way to go about it? More seriously, should parliament be made to do its business with a sword hanging over its head, put there by the highest court in the land?
If the Supreme Court itself will limit parliament’s supremacy, and politicians will go running to accommodating judges whenever some provisions of the constitution are up for debate, then it must at least be definitively settled who is responsible for undermining the spirit of representative government in this country.
Copyright Business Recorder, 2023