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Review petition filed in Balochistan case Court trying to assume powers of 58(2b): govt

By Nasir Iqbal 2012-11-09
ISLAMABAD, Nov 8: The federal government again emphasised before the Supreme Court on Thursday that it was not the court`s function to evaluate the performance of a political government and that too while dealing with political questions.

In its petition seeking review of the apex court`s Oct 12 interim order on the situation in Balochistan, the government argued that the order amounted to assuming by the court defunct powers of Article 58(2 b) of the Constitution under which elected governments had been sent packing in the past.

`The use of this article has since been disregarded and discontinued by the parliament through the 18th Amendment. The judges of the superior courts by virtue of their oath read with their code of conduct are under a constitutional obligation not to enter into political questions,` said the strongly worded petition.

In its Oct 12 order, the court made stern observations against both the federal and provincial governments.

Except deploying FC troops, the federal government had failed to protect Balochistan from internal disturbances.Similarly, the Balochistan government had also lost its constitutional authority to govern the province because of violation of fundamental rights of citizens, the order said.

`The country is at war and poise is the demand of the hour. Therefore, the court is expected to adhere to its wellestablished principle of trichotomy of powers,` the petition said, adding that getting involve d in political questions constituted misconduct under Article 5 of the Code of Conduct of the superior court judges.

`Such declarations or painting a bleak picture in the province is very dangerous for the country and a licence or invitation to unseen avaricious forces,` said the petition which admitted for the first time that minerals of Balochistan had attracted the big powers. The federal government, it claimed, was prudently warding off the threat.

The petition said: `It appears that the court seems inclined to revive the essence of the 17th Amendment in regard to Article 58(2 b) once available to the president.

The court has no constitutional mandate to arrogate such powers to itself.

`In fact it is for the parliament or the federal government to decide whether a situation has arisen in which the government of the federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary.

`The observation made in the interim order suggests that the apex court impliedly wants the federal government to take direct control of Balochistan or impose governor`s rule. However, it is not within the constitutional domain or jurisdiction of the apex court to force the federal government to impose such a course of action.

`A careful perusal of the interim order shows that the court at no stage was mindful of the possible effects of the order. The executive feels shy of making proper postings and transfers of officers and placement of contingents of paramilitary forces while the senior officers, instead of attending to their actual job, remain occupied in tabulating and multiplications of events and preparing reports for the court.

`The order is tantamount to harassment, interference and direct suspension of faithful and actual discharge of duties.

`The federal government is fully alive to the situation and earnestly exerting to cure the situation through the civil law enforcing agencies so that the jurisdiction of superior courts under Articles 184 and 199 remains intact.

`Sardars and vaderas have their own axe to grind. They do not brook even smallest development in their area, but fan prejudices in the name of non-development. The court is fully abreast of this paradoxical attitude of sardars. The change can only come gradually for which the government alone cannot be blamed.