The News Editorial : Tuesday, March 20, 2012

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The prime minister and his ‘legal’ team are trying to set a dangerous precedent. Instead of obeying the law, the chief executive of the country has decided to throw it into the abyss of politics. Clearly refusing to write a letter to Swiss authorities to reopen graft cases against President Zardari, Prime Minister Gilani in his reply submitted in the contempt case on Monday referred to the court’s earlier order of January 9, 2012 and said the court should either exercise one of the six options it had presented earlier – leave the matter to the judgement of the people – or refer the case to parliament as was done in the case of the 18th Amendment. While the prime minister may be trying to engage in interpretational gymnastics to get out of obeying the NRO verdict, there are no two ways of interpreting the PM’s latest reply to the court: that he is intentionally striking at the very heart of rule of law and openly indicting the competence of the Supreme Court in interpreting the Constitution. Speaking to the media on Sunday, the prime minister argued that since the issue of judges’ appointment was referred to parliament and resolved through the 19th Amendment, the issue of the president’s immunity should also be referred to parliament for its resolution. However, the two cases are not in the least comparable. The 19th Amendment sought changes in the mechanism for appointing judges in the superior courts in light of proposals forwarded to parliament by the Supreme Court itself in an order. That order came in response to several legal challenges to the judges’ appointment mechanism envisaged in Article 175A of the 18th Amendment, approved by parliament earlier that year. Since parliament is the apex legislative body and the only relevant forum where laws can be made and amendments introduced, the court itself asked that parliament reconsider some provisions of the 18th Amendment, which it did, culminating in the 19th Amendment.

In the case of the contempt case, the question is not one of the vires of a constitutional position or law. It is about the Supreme Court interpreting the Constitution – whereby it has ruled that the PM stands in contempt for not writing the Swiss letter – and about getting its judgment in the NRO case implemented. Neither task – of interpretation or implementation – is something parliament is mandated to do. Thus, by asking that the issue be referred to parliament, the prime minister has not only betrayed his absolute lack of understanding of the scheme of the Constitution but also of what the three pillars of the state are constitutionally sanctioned to do. As for the option of referring the matter to the people to decide – the famous 6th option that the court had itself suggested in its Jan 9 order – exercising this option, in our opinion, would be tantamount to undermining the finality of the SC judgment in the NRO case. It would mean that the court is not standing by an order given by its own 17-member bench which had declared the NRO null and void and demanded that the government write a letter to Swiss authorities in December 2009. A seven-member bench cannot undermine the ruling of a 17-member bench. This is a precedent that should not, and cannot be set.

At a time when what the power and energy sectors are most in need of is robust and effective management, what they are going to get is yet another ‘special task force’ formed by the Planning Commission with representation from the public and private sectors to ‘develop a roadmap’ to address a range of issues. These include de-regulation and market-based pricing structures energy security and affordable energy for consumers – perhaps an overly optimistic agenda given the ramshackle state of the power sector generally. Not only is the Planning Commission busy creating yet another possible talking shop, it has plans to extend it into an entire bazaar of power-chattering outlets down the line – formulating recommendations to the Cabinet seeking its approval to form task forces, develop a long-term road map and report on progress ‘in resolving issues and bottlenecks to ensure implementation of the reforms.’

The planners are not the only ones in the power-talk business. The Overseas Investors Chamber of Commerce and Industry (OICCI) is proposing the creation of a dedicated Ministry of Energy – which on the face of it sounds like a good idea. They say in their proposal paper that we would find it more cost effective to increase our energy capacity by efficiency and conservation efforts than by building new generation capacity. There is a profound truth in this as evidenced by the revelation by the Pakistan Electric Power Company (Pepco) that Rs500 billion of investment in the power sector has been lost to mismanagement and corruption during the tenure of the present government. Around Rs1.3 trillion has been pumped in over the last four years as subsidy; but Rs500 billion was ‘not properly utilised’ – to use the official euphemism. The chief executive of the procurement arm of Pepco delivered a stinging indictment of the way in which the power sector has been managed in a lecture he gave to the institution of engineers (IEP) last Saturday. We cannot know if there were any representatives of the Planning Commission at the lecture, but if there were they would be wise to take to heart what was said. There is a management axiom – ‘if you want to avoid doing something – call a meeting.’ Quite so.

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