Peoples' sovereignty and masking the truth

On Thursday, July 9, morning here in the United States experts on Pakistan were literally stunned to see that the federal government had tried to effectively invalidate the decision of the Supreme Court suspending the levy on petroleum which the administration had sought to recoup over 120 billion in revenues in the in next fiscal year. The question of any government trying to over rule the decisions of court of law is basically odious. In this case the court happens to be the country's highest judicial forum, the Supreme Court. The decision in question is not merely an ordinary one given in average adversary litigation; it touches literally every single person living in the country. The simple fact is that the administration initially failed to convince the court of the legal merits of its charge. The interim decision to stay the levy was given after weeks of arguments. This fact needs to be stressed that this facade of having in the country any semblance of any democracy or the power of the people in Pakistan is the negation of truth and an act of supreme self-deception. Democracy does not only mean the significance of having elected people to public offices; it implies the pivotal position of the country's legal institutions. Quite manifestly employing bizarre logic, the spokesman of the president said after this matter became public that: "The government accepted the interim order of the Supreme Court with an open heart. It issued an Ordinance levying petroleum development levy (PDL), as allowed under the constitution. There is no contradiction between the two. The president has not suspended the Carbon Tax. It was already suspended by the court verdict." However, politically three points of severe constitutional force have to be answered by those who sided with the incumbent president: ? It is elementary principle of judicial and legal propriety demand that the promulgation of an Ordinance at a time when the case is in the court of law cannot be permitted. ? Passing of a fiscal levy through the Executive branch is void per se since under the constitution a money bill alone can accomplish this when the laws are passed in Parliament. ? Passing a "law" on identical facts which the government has lost in court by simple changing of words is the ultimate destruction of any concept of judicial rule of law. The text of the Ordinance No XV of 2009 Ordinance says: "To amend the Petroleum Products (Petroleum Development Levy) Ordinance, 1961 whereas it is expedient further to amend the Petroleum Products (Petroleum Development Levy) Ordinance, 1961 (XXV of 1961), for the purposes hereinafter appearing: "And whereas the National Assembly is not in session and the president is satisfied that circumstances exist which render it necessary to take immediate action: now, therefore, in exercise of the powers conferred by clause (I) of Article 89 of the constitution of the Islamic Republic of Pakistan, the president is pleased to make and promulgate the following Ordinance: -2 short title and commencement: - This ordinance may be called the Petroleum Products (Petroleum Development Levy) (Amendment) Ordinance, 2009. (2) It shall come into force at once. 2. Amendment of Ordinance XXV of 1961. In the Petroleum Products (Petroleum Development Levy) Ordinance, 1961 (XXV of 1961), hereinafter referred to as the said ordinance: - (i) in the long title and the preamble, for the word "surcharge" the words "petroleum levy", shall be substitute: and (ii) for the words "surcharge" wherever occurring, the words "petroleum levy" shall be substituted: 4 Amendment of Section 2, Ordinance XXV of 1961. In the said Ordinance, in section 2, (i) in Sub-section (1), for the words "carbon surcharge" the words "petroleum levy" shall be Substituted; and (ii) after clause (4B), the following new clause shall be inserted, namely: " (4Ba) " petroleum levy" means the levy payable under section 3," 5 Amendment of section 3, Ordinance XXV of 1961. In the said Ordinance in section 3, (i) In sub-section (1), for the words "carbon surcharge" the words "petroleum levy" shall be substituted. The president has thus promulgated Petroleum Development Levy (Amendment) Ordinance-2009 by substituting the words 'carbon surcharge' suspended by the court with 'petroleum levy' and it is to come into force allegedly "at once" since "the Parliament was not in session." How long does it take to call Parliament in session may I ask? When can we have honest people in the government in Islamabad? How long will we have to fool everyone? The Supreme Court of Pakistan had suspended the enforcement of the carbon tax to provide interim relief to people in a petition filed by a PML-N leader. But the time has come for PML-N chief Mian Muhammad Nawaz Sharif to judge the trajectory of exercise of authority being exercised by the government and his minimum duty as opposition leader to act decisively of what to do and what is now demanded by the circumstances. Such fiascos seemingly have regrettably the tacit support of the opposition. Quite predictably throughout the country triggered brawls and clashes at various filling stations and leading to protests against the government. In Karachi the lawyers took the lead precession against this despotic act of the government. It is a simple fact of life that the prices of petrol, diesel or kerosene oil, have gone up again, and the pressure for increase in the transport fare will be difficult to stand. Since petroleum products constitute in one way or the other inputs in virtually all goods and services in common use, it is simple logic that the country is up for an across-the-board round of inflation. It immediately reflects on strength of the rupee which shot up to RS 82 to the US dollar forthwith. How this newer crisis unfolds is not difficult to visualise; but the writing is on the wall of what is likely to happen? A bigger long march may ultimately accomplish for democracy what was left undone by the then events in February 2009? The writer is a barrister (UK), senior advocate of the Supreme Court of Pakistan, and professor at the Havard University

The writer is barrister at law (US and UK), senior advocate of the Supreme Court of Pakistan and professor at Harvard University.

ePaper - Nawaiwaqt