In the public’s perception, the fate of the Nawaz Sharif dissolution case before the Supreme Court appears to be a foregone conclusion. There is nothing remarkable about that. Beginning with the Maulvi Tamizzuddin case in 1955, the SC has never rstored the status quo ante. But what is extraodinary about the current case is that some people actually think the SC will restore Mr Nawaz Sharif to power. Why is that?
Part of the explanation may lie in an unprecedented first-day intervention by the Chief Justice Dr Nasim Hassan Shah. Dr Shah joined the issue of the “Jurisdiction” of the SC to admit the write petiiwith the issue of deciding the petition on its “merits”. This, in effect, ruled out any questions about the SC’s jurisdiction to hear the petition in the first place. More significantly, an exceptional “comment” by the CJ suddenly opened up new possibilities. Dr Shah observed that in the 1955 Tamizzuddin case, the Advocate General won the case on the basis of “technical” objections. But, he said, despite being an outstanding jurist, Justice Mohammad Munir has been roundly abused for taking such a decision. That is why, said the CJ, the SC would now chart new legal territory and deliver a historic judgement.
The attitude of the judges towards the petitioner’s counsel Mr Khalid Anwar and Attorny General Mr Aziz Munshi also tends to support the public’s perception. While Mr Anwar’s presentation was heard in pindrop silence by the judges, some would say with visible appreciation, Mr Munshi has been continuously interrupted with questions from the bench, mocked by his ‘inability to understand or answer them’ and literally laughed out of court by the irrepressibly witty CJ Dr Shah, notiwithstanding the CJ’s own admonition to the galleries to remain serious at all times.
There are other signs of the times. One SC concern appears to be, as Justice Sharif ur Rahman put it, “to remove all irritants in th relationship between the President and the PM”. Who, for instance, asks the learned judge, has the right to appoint the COAS? Although this issue is not at stake in the curent case and despite Mr Khalid Anwar’s admission that this power belongs in the domain of the President’s discretion, Justice Rahman seems keen to address it afresh. Then there is the question of the nature of our political system. The Judges continue to insist that it is a “parliamentary” system, despite Justice Sidwa’s clear judgement in the Tariq Rahim case: “…The President is thus no less powerful than the PM. The basic character of the constitution is now a mix. It is not totally parliamentary; as it was intended”.
The public’s perception may therefore be perfectly understandable — by all accounts, the SC wants to write history. But is this view correct? People steeped in matters of law understand only too well, as CJ Shah has pointed out, that the “observations” of the bench during the hearing are meant to be tentative in nature and are not necessarily judgmental. Unfortunately, those in the galleries, including press reports, do not always make these direction. In consequence, if the eventual judgement should disabuse such expectations, there may be a crisis of confidence. Is the likely?
We understand that Mr Sharifuddin Peerzada, an old hand in such constitutional matters, is expected to provide some evidence in-camera to the SC defending the President’s dissolution order sacking the Nawaz Sharif government. The significance of this sould not be understimated, especially by supporters of Nawaz Sharif who are gearing up to hoist their leader as PM once again. The SC also seems to be interested in exploring the scope of Section 58-2(B), in particular the possibility of delinking the issue of the breakdown of the federal machinery of government from the issue of the necessity of appealing to the electorate afresh. Is this a poin th edirection of restoring the assembly without restoring the Nawaz Sharif government? If so, ask our pundits, won’s such a decision be more realistic, and therefore resoundingly historic, than one in which the President’s dissolution order is either totally upheld or totally overthrown?
There will be occasion to comment on the decision soon enough. In the meanwhile, we remain bewildered by the import of CJ Shah’s trial of Mr Aziz Munshi last Tuesday. As the Attorney General was alluding to the lack of transparency in the privatization of the Muslim Commercial Bank, CJ Dr Shah enquired whether or not it wasn’t the case that Mr Munshi had defended the Nawaz Sharif government in the petition filed against it by the Tawakkal group. “I was asked to assist the court”, gulped Mr Munshi, looking visibly embarrassed. His discomfiture before the CJ was surely misplaced. Who doesn’t recall a certain Tamizzuddin case in 1955 in which the Advocate General Mr Fayyaz Ali Khan was assisted in his adevours by a brilliant young advocate by the name of Dr Nasim Hassan Shah. If Dr Shah could rise to pre-eminence despite Maulvi Tamizzuddin, there may be hope for Mr Munshi yet.