Though the President has not yet promulgated it, he has an ordinance to curtail the Supreme Court’s powers with him. Moving it would reflect a peculiar kind of desperation, as he would concede that he is so agitated that he would like to use his power of issuing ordinances to do the work that can only be done by constitutional amendments. The PPP lacks the required strength in Parliament to amend the Constitution. Even if it does succeed in amending it, there is the likelihood of it falling afoul of the Basic Structures Doctrine and struck down. However, the proposed ordinance merely inserts a new Section in the SC rules, allowing for an intra-court appeal to a larger bench and automatically staying judgments until appeals are decided. This would cause complications in the decision against Mr Gilani. However, intra-court appeals against SC judgments would threaten the court and the entire legal structure, as it will mean that the apex court would never be secure in the knowledge that its decision would be final.
The Basic Structure Doctrine, which was first propounded before the Indian Supreme Court, but which has been approved by Pakistan’s, holds that there are certain basic structures to the Constitution, which cannot be amended even by the amending authority, without being subject to judicial review. One of those basic structures is the independence of the judiciary. As the ordinance would represent an attack on that independence, and as the SC has been very strenuous about maintaining that independence since the restoration of the deposed judiciary, the doctrine will be attracted.
Reducing the ordinance to a minimum, it is meant to preserve Prime Minister Raja Pervaiz Ashraf from the consequences, such as the removal from office suffered by his predecessor, of not writing the letter to the Swiss authorities about the President’s corruption cases. The preparation of the ordinance shows that the Zardari regime is bent upon preventing that letter from being written, and is willing for the government to continue defying the Supreme Court’s orders. The PPP must stop putting the interests of an individual ahead of the entire nation’s.