What is to be done?
By Justice Markandey Katju
The Pakistan Supreme Court had directed that today, 10th April, Rs 21 billion had to be given to the Election Commission of Pakistan for holding elections in Punjab.
But instead of releasing this money, the Secretary Finance has fled to America giving the flimsy excuse that he is going to the IMF. And instead of complying with the Court order the PDM Govt has sent the matter to Parliament, where it is bound to be rejected, since the PDM will oppose elections tooth and nail, despite the clear mandate of Article 224(2) of the Pakistan Constitution that elections must be held within 90 days of dissolution of the Assembly, since it knows it will be routed in the polls. This move is just dilatory tactics, and the PDM govt is trying to be too clever by half.
What should be done in this bizarre situation?
I submit that what has to done is clear : contempt of court notice must be issued by the Supreme Court to the PDM Govt giving it a very short time, say of one week, to reply, and if it still defies the court order, it should be sacked by the court for contempt of court, just as Prime Minister Yusuf Raza Gilani was sacked in 2012 for contempt of court.
Former CJP Iftikhar Chaudhry had the guts to take such action. The present CJP Bandial must display similar guts.
In my opinion this is the only recourse left. Failure to do this by the Court would mean that its orders can be disobeyed with impunity. Then the judges might as well pack up and go home.
There is a well-known old maxim, which was quoted by Lord Denning in one of his judgments: ”Be you however so high, the law is above you ”.
In this connection, I may narrate an incident. While hearing the Commendam case in England in 1616, Chief Justice Coke was summoned by King James 1 and asked why he defied the order of the King ? Lord Coke replied that the King’s order was contrary to the law. He said :
”The law was the golden metwand and measure to try causes of the subjects, which protected his Majesty in safety and peace: With which the King was greatly offended, and said that then he should be under the Law, which was treason to affirm (as he said). To which I said, that Bracton saith. Quod Rex non debet esse sub homine, sed sub Deo et Lege—that the King should not be under man, but under God and the Laws.”
So the PDM Govt is under the law, not above it. The supreme law of the land in Pakistan is its Constitution, and Article 224(2) is part of it, which the Supreme Court is duty bound to enforce. It is the Constitution which protects the people of Pakistan in peace and security, and failure to enforce it will lead to chaos, jungle raj, and may even result in civil war.
