In Pakistan: Judges judging judges
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Media headlines in Pakistan these days predict doomsday daily. It is not far-fetched. The Supreme Court is coming apart at the seams with its 15 members now evenly split over how to adjudicate a ballooning political crisis that itself has divided Pakistan into bitter polarization.
The judiciary is locked in a burn-all-the-boats intricate dispute with the parliament and government and chances are receding it won’t end badly with lasting consequences for the future of democracy, governance, justice and the very viability of the state. With no one budging, dark mutterings of extreme outcomes such as a rights-curbing state of emergency or even martial law materializing ominously fill the air.
How did it come to this? In the backdrop of an economic meltdown and a political crisis between the coalition government led by Shahbaz Sharif and a strident opposition spearheaded by Imran Khan politics and governance has been crippled. The government and judiciary have locked horns on whether, how or when due elections should be held.
The top court has held premature dissolution of legislatures in Punjab and Khyber Pakhtunkhwa by the party of Khan to force early elections lawful. The calculation was that because traditionally elections to provincial legislatures and National Assembly are held simultaneously, the Sharif government would be forced to dissolve the National Assembly and his own government – and hold elections that would return a popular Khan back to power after his fall from political grace last year.
Will the court send the prime minister home for contempt of its orders as it has done twice in the last 10 years? Will the parliament refuse to accept court orders? Will the government impose a state of emergency to forego elections?
Adnan Rehmat
The government has refused to hold any elections before they were originally due in October. This has led the Supreme Court taking suo moto notice (un-petitioned by any aggrieved party) and ordering polls within 90 days as stipulated in the Constitution, disregarding the government’s plea that major elections within months are a waste of money.
The suo moto notice itself split the apex court with four of the seven judges of a bench formed to hear the case rejecting the top judge’s position. The embarrassed top judge controversially disregarded the majority opinion and formed a redux bench of the three remaining judges, including himself, and promptly ordered provincial elections on the pain of severe consequences.
This ‘like-minded minority bench’ was merely the latest in a long string of benches preferred by Chief Justice Ata Bandial that the government accuses of favouring Khan. The second senior most judge, Faiz Isa, who will replace Bandial when he retires later this year, has been openly writing letters to him protesting his consistent discretion excluding senior judges in constitutional cases leading to impressions of impartiality.
The no-longer secret and often volatile tension between the two top judges has included the sensitive matter of selection of judges with Bandial pushing back against repeated suggestions by Isa to embrace a nuanced procedure rather than sole discretion. Isa is also critical of Bandial’s absolute discretion in bench formation and suo moto notices and instead wants this authority exercised by a committee of senior most judges.
Favouring this, the government last week passed a bill in the National Assembly broadening the powers of the chief justice in formation of benches and mandating approval of suo moto notices by a group of three senior-most judges. President Arif Alvi, an aide of Khan’s and an opponent of Sharif’s, returned the bill unsigned. A joint sitting of parliament promptly passed it again, which will become law within days even if unsigned by the president.
But Bandial unprecedentedly suspended the application of the still un-notified law, creating another bench of like-minded judges to defend against a perceived attack on the independence of the judiciary. Re-striking back, the parliament passed a resolution against this order and vowed to fight the bench. Sharif is now readying the file references against Bandial and his like-minded judges.
This sets up a titanic showdown. Both parliament and judiciary – two of the three pillars of the state – fighting over who has final supremacy over political and constitutional decisions. Will the court send the prime minister home for contempt of its orders as it has done twice in the last 10 years? Will the parliament refuse to accept court orders and enforce its rejected law? Will the government impose a state of emergency to forego elections? Will a “parallel court” emerge with two sets of judges adjudicating against each other? Will the army step in and take over?
Something will surely give soon. None of these outcomes makes Pakistan a normative state. The parliament and judiciary should not be fighting – the court of public opinion and the court of law need to align and that lies somewhere in the middle of where they are now.
- Adnan Rehmat is a Pakistan-based journalist, researcher and analyst with interests in politics, media, development and science.Twitter: @adnanrehmat1
