PM Gilani and President Zardari escaped the wrath of the court in Memogate because that case was not legally sound; however, the two will not be so lucky with the NRO case, where the court is acting with more legitimacy. — Illustration by Faraz Aamer Khan/Dawn.com

The Supreme Court of Pakistan has asked Prime Minister Yousuf Raza Gilani to appear before the National Reconciliation Ordinance (NRO) case tribunal in two weeks’ time to face a contempt of court charge, which the PM plans to appeal. Many predicted that the institutional stare-down between the courts and executive branch would fizzle out, yet, the situation is escalating quickly with an increasingly aggressive and frustrated Supreme Court.

While the court’s recent hearings have reflected a narrow focus on President Asif Ali Zardari’s corruption cases in Switzerland, the judges are raising a far greater concern. The Supreme Court has become aggravated with the current administration’s lack of respect for its 2009 opinion, which required a reinstatement of all cases dismissed under the NRO. However, the court will have to be mindful of the limitations on its power, as it proceeds forward against PM Gilani.

Background of NRO The NRO was an ordinance passed by President Pervaiz Musharraf granting immunity to certain political officials who were facing criminal charges. The nominal objective of the ordinance was to award immunity to those who faced politically-motivated criminal charges, but the effect was that a great number of beneficiaries were members of the ruling political party. Thus, the NRO was held to violate the protections of equality in the Constitution, as it pardoned certain people not because they were innocent of the charges leveled against them, but because they were in the right political place and time.

After rejecting the NRO, the court left it to the executive branch to implement the decision of the court and re-open all cases dismissed by the ordinance. However, the follow-up hearings held by the Court revealed that all levels of the executive branch were instructed to drag their feet on implementing the court’s orders. In many ways, the court became less concerned with the outcome of its contempt proceedings, and far more concerned with the lack of respect being paid to its institution.

Power of the court: Judicial review Montesquieu once said that of the three branches of government, the power of the courts is “next to nothing,” mostly because it cannot execute its judgments nor can it create law as the executive and parliament are tasked with respectively. While this may be true for countries like the US and Pakistan, the existence of a written constitution has been used by the apex court of both nations’ to assert its right to oversee the acts of the other branches.

Under this doctrine, the Supreme Court is tasked with rejecting any laws or actions by the state that violate the Constitution. As Chief Justice John Marshall stated, when the court is faced with an unconstitutional law, they cannot “close their eyes on the constitution, and see only the law…this doctrine would subvert the very foundation of all written constitutions.” As such, both the Pakistani Supreme Court and American Supreme Court’s agree that it is the job of the judiciary to ‘say what the law is,’ which is what the Court was doing in the NRO case.

Limits on the power The problem for the court is that though judicial review is a recognised as one of its rights, there is little guidance offered for when the executive branch is unwilling to carry out the will of the court. In the NRO decision, the Supreme Court cited to Marbury v. Madison, which was a seminal US case that established judicial review. However, since then, the US Supreme Court has taken steps to limit its use of judicial review, so as to respect the separation of powers envisaged in the constitution.

Pakistan’s Constitution embodies a similar system of separation of powers, and the SC is developing its own limits on judicial review. As such, in the original NRO decision, the court acknowledged its own limitations with judicial review stating “the legislature is assigned the task of law making, the executive-to-execute such law and the judiciary to interpret the laws. None of the organs of the State can encroach upon the field of the others.” This echoes the lines of Montesquieu who stated “there is no liberty, if the power of judging be not separated from the legislative and executive powers."