Govt challenges Balochistan case verdict
09 November, 2012
ISLAMABAD: Submitting a review petition against the Supreme Court's October 12 order in the Balochistan target killing case, the federal government stated it appears that while passing the impugned order, the court was persuaded and inclined to revive the essence, letter and spirit of the 17th Amendment regarding the controversial powers of Article 58(2)(b), once available to the president of Pakistan.
It also contended the court's assuming to itself the defunct powers of Article 58(2)(b) – the use of which has been disregarded and discontinued by parliament itself in view of the constitutional amendments after the 18th Amendment.
The government further called the court order "very dangerous" for the country and believed it to be a licence or invitation to unseen avaricious forces. The court in its October 12 interim order held, "Unfortunately in the instant case (Balochistan unrest case) the federal government, except deploying FC troops, has also failed to protect province of Balochistan from internal disturbances. Similarly, as far as provincial government is concerned it had lost its constitutional authority to govern the province because of violation of fundamental rights of the people of Pakistan."
In the review petition, the federal government pointed out it is not the function of the superior courts of the country to gauge performance of a political government, and the judges of the superior courts by virtue of their oath are under a constitutional obligation not to enter into political questions even if such questions involve questions of law.
"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. As such 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," it added.
The petition said the court has pointed out the ills but has not explicitly suggested any remedy, as it thoroughly knew the implications. "The country is at war and poise is the demand of the hour. The Supreme Court is expected to adhere to its well-established principle of trichotomy of powers," it further said.
The petition said the Supreme Court was 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 succeeded or failed in performing its functions.
"It is thus clear that Supreme Court impliedly wants the federal government either to take direct control of Balochistan or impose the governor's rule. However, it is not within the constitutional domain or jurisdiction of the Supreme Court to force the federal government to impose such a course of action. Under the constitution, the president is to decide such matters on the advice of the prime minister or in terms of Article 48(2) of the constitution," it added.
It also stated there are about 24 fundamental rights but the court had based its order almost on two of them, though 21 are almost intact. The government is trying its level best the fundamental rights are not suspended.