SC verdict tantamount to using defunct 58 (2)(b): Centre

ISLAMABAD: The government filed a review petition in the Supreme Court on Thursday in connection with the apex court’s judgment in the Balochistan law and order situation case, and submitted that any such type of declaratory order or painting a picture is very dangerous for the country.

Advocate-on-record (AOR) Raja Abdul Ghafoor through whom the federation’s review petition was to be filed, however, told reporters at the Supreme Court building that he was not yet to be asked to file the review petition.

The Attorney General, however, quickly directed one of his staff members to distribute copies of the review petition among the journalists who were there to cover the SC Registrar’s press conference in connection with the detailed verdict in the Asghar Khan’s case. The federation submitted in the review petition that any such type of declaratory order or painting a picture is very dangerous for the country.

“It is a licence or invitation to unseen avaricious forces”, the federation contended adding that it would be extremely relevant to point out that it is not the function of the superior courts of the country to gauge the performance of a political government and that too while dealing with political questions.

It submitted that the judges of the superior courts by virtue of their Oath read with their code of conduct are under the constitutional obligation not to enter into political questions even if such questions involve questions of law.

The court had ruled on October 12 while giving judgment in the Balochistan law and order situation case that the provincial government had lost its constitutional authority to govern because of violation of fundamental rights of the people of Pakistan.

Similarly, the court on November 2, 2012 had ruled that its order of October 12 would remain intact and had directed federal secretary interior and secretary Balochistan to submit fortnightly report pertaining to improving the law and order situation in the province.

“Getting involved in political questions constitutes misconduct under Article 5 of the Code of Conduct of Superior Court judges issued after the restoration of the present Chief Justice”, the federation contended.

It submitted that the aforesaid findings of this court are without jurisdiction and the same need to be reviewed keeping in view the Constitution, the law and principles of good conscience and fair play.

The federation submitted that order sought to be reviewed is tantamount to this Hon’ble Court’s assuming to itself the defunct powers of Article 58(2)(b), the use of which in fact has been disregarded and discontinued by the Parliament of Pakistan itself in view of the amendments brought about by the Constitution in consequence of the 18th Amendment of the Constitution.

“It appears that while passing the impugned order the Court was persuaded and inclined to revive the essence, letter and spirit of 17th Amendment as regards the controversial powers of 58(2)(b) once available to the President of Pakistan.”

The federation further contended that the Court has no constitutional mandate to arrogate such powers to itself. “In fact it is for the Parliament or the federal government to decide whether a situation has arisen in which the government of the federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary”, it added.

Referring to para No.6 of the court’s order, ruling that prima facie agencies of the federal government working in the provinces seem to be helpless, the federation contended that this finding of the Supreme Court cannot be made the basis for arriving at the conclusion in para 6 that federal government failed to perform its duty under Article 148(3) of the Constitution. In fact the finding of the Supreme Court is based on an assumption/ presupposition/presumption, which in fact has no basis in law.

“Even otherwise Supreme Court is not mandated under the Constitution to determine or to gauge the performance of the federal government or the provincial government irrespective of the fact whether any government succeeds or fails in the performance of its functions”, the federation submitted.

Similarly, it contended that “there is no legal or factual justification for this Hon’ble Court to have given the findings in Paragraph 6 that the federal government had failed to discharge its duties in terms of Article 148(3) of the Constitution, adding that it is not for the Supreme Court to regulate the working of the federal government or to sit in judgment on the performance of the federal government in the discharge of its functions. Besides, a few incidents here or there do not amount to failure of a political government in the discharge of its functions.”

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