Supreme Court ruling on Balochistan flawed
By: Nasir Iqbal
ISLAMABAD: The Supreme Court’s hearing on Friday provided the government an opportunity to hit back after two weeks of silence on the apex court’s Oct 12 interim order on the situation in Balochistan.
Referring to the court’s severe criticism of the Balochistan government’s lack of governance, the federal government made it clear that it found the order flawed and that only the president had the right to intervene in affairs of provinces.
The interim order had said the provincial government’s failure had undermined its constitutional authority. But the government’s attack achieved little and the bench comprising Chief Justice Iftikhar Muhammad Chaudhry and Justice Jawwad S. Khawaja said the interim order remained intact.
The bench is hearing a petition of the Balochistan High Court Bar Association on the law and order situation and human rights violations in the province. Although the statement was read out by Attorney General Irfan Qadir, Interior Minister Rehman Malik also turned up in the court in defence of the government.
Mr Malik admitted that he had not seen the report submitted by his Secretary Khawaja Siddiq Akbar and then tried his best to impress upon the court that the interim order should be shelved because it was creating difficulties for normal functioning of the government and was also a source of embarrassment.
But to no avail. The court remained impervious to his pleas. In fact, when the minister tried to say that Balochistan was in grip of an insurgency, he was immediately contradicted.
“It’s not insurgency, but lack of good governance,” the chief justice observed. He said Baloch people had played a role in the creation of Pakistan and cited a report of the Balochistan IG in which he had conceded that the Frontier Corps (FC) was behind some of the disappearances.
The chief justice also asked the interior minister to read a confession in the court record in which a provincial minister had pointed a finger at his cabinet colleagues for their role in kidnapping for ransom. “Kidnappings have become a hot trade in the province,” the CJ added.
The court, however, ceded to a request of the Balochistan government and adjourned the hearing for two weeks to enable it to do the needful. Chief Minister Nawab Aslam Raisani attended the proceedings, along with almost all his cabinet colleagues. He sat in the front row in the courtroom No 1.
The bench asked Mr Malik to go to Balochistan and recover missing persons if he really wanted to prove government’s efforts to rectify the downslide in the province and show how many criminals involved in terrorism, kidnapping and killing of FC and police personnel had been arrested by the government for trial.
Advocate General of Balochistan Amanullah Kinrani insisted that the responsibility for internal disturbance in Balochistan rested with those who had killed Nawab Akbar Bugti, and not with the chief minister. He reminded the court that Article 58(2b) under which presidents used to send governments packing had been deleted from the Constitution.
The interior ministry’s report said it was the sole prerogative of the federal government to determine scope, scale, extent, suitability and adequacy of intervention in the affairs of the Balochistan government on account of internal disturbance to ensure that the government was run in accordance with the Constitution.
“Determination of the legitimacy of a provincial government is a domain which has been clearly defined in Articles 232 and 234 of the Constitution by virtue of which the president is the sole authority to decide on the fate of the provincial government. This right is absolute and lies only with the president and nobody else,” the report said.
It questioned whether the court was proclaiming an emergency as envisaged under Article 232 when it was a sole discretion of the president. Apart from law and order, political considerations were the foremost consideration before reaching a decision for disposal of the provincial government, the report said.
“The present popularly elected democratic government is about to complete its tenure in office in a few months and it is a landmark in our political history which is unprecedented, singular and most individual achievement associated with the present government,” the report said.
The government would not like to taint or tarnish its fair image by invoking its powers to pack up a provincial government and send it home on a limited local issue of discontentment and dissatisfaction of some so-called nationalist elements that held divergent views best suited to their interest.
The report said: “It is difficult to conclude that the provincial government in Balochistan has failed or lost its constitutional authority when it is discharging its functions and duties as any other provincial government or administrative unit in the country.
“Its (Balochistan’s) offices are functioning, its courts are being conducted and its administration of criminal as well as civil justice is taking place, schools are open, hospitals are treating patients, social sector programmes are being undertaken and development activity is in progress. Thus the pronouncement of failed provincial government is not easily understood and hard to agree with.”
The report cited the example of Swat and Malakand operation in which more than 200,000 people had been displaced, causing a huge problem for the provincial government in terms of their resettlement and rehabilitation. At no point in time was it ever considered to declare an emergency or to regard the disturbance in the two divisions as alarming or gigantic enough to take recourse to drastic measures like envisioned in the apex court order.
The report called for benefiting from the Indian experience and said in the disputed states of Kashmir, East Punjab, Nagaland, Asam and Mizoram, armed insurgency and partial breakdown of government machinery had taken place for several years, but still democracy and successive elections afforded the people and the government a good chance to overcome their difficulties and defeat militants with political process which was allowed to continue unhindered and undisturbed.
Both the provincial chief secretary and federal interior secretary will continue to submit fortnightly reports about the situation in Balochistan.
PSDP FUND FROZEN: The same bench in a different case ordered the authorities concerned to freeze a fund of Rs24 billion allocated for 739 non-development projects under the Public Sector Development Programme (PSDP) in Balochistan.
The court had taken up a petition of Pakhtunkhwa Milli Awami Party leader Abdul Rahim on misuse and embezzlement of government funds. The court asked the provincial government to constitute an independent commission for a forensic audit of all PSDP schemes undertaken over the past four years in Balochistan.
Advocate General Amanullah Kinrani informed the court that the provincial government had issued a notification for constituting a three-man commission to investigate the alleged corruption in non-development projects which, he alleged, had been committed by the previous government.
The case will be taken up after four weeks.
” 
” 
” 
” 
” 
