Dire implications of the institutional breakdown between Pakistan’s government and judiciary

The standoff between the government and the top court has pushed the country close to a breakdown of the political system.  The tension between the two pillars of the state turned into an open confrontation last week when a supreme court bench blocked a bill passed by the parliament clipping the powers of the chief justice to take up suo motu cases.

It was an unprecedented action by the court, barring the enforcement of a bill which still required the president’s ascent to take effect. The parliament in an emergency session rejected the court’s order describing it as an “aggressive attempt of the supreme court to abrogate the unquestioned constitutional authority of the parliament to make legislation.”

In a strongly worded statement, the ruling coalition has questioned the “integrity of the chief justice” and accused him of misusing his judicial authority.  The government has also filed a reference against the chief justice and two other judges in the supreme judicial council for “contravention of the constitution.” The gloves are off as both sides have hardened their respective positions. 

Meanwhile, in another act of defiance, the government has rejected the court’s order to release funds to the Election Commission to hold elections for the Punjab provincial assembly. A three-member bench of the apex court headed by the chief justice earlier this month had ordered the government to provide the required funds to the ECP and ensure security for the exercise. These two issues had been cited by the ECP as the reason for its decision to postpone elections.

The conflict has taken a more ominous turn as the disagreements have come out into the open. It has tarnished the image of the apex judiciary and affected public trust and confidence in the judicial process.

Zahid Hussain

Last month, the Supreme Court had ordered the ECP to hold elections to the Punjab assembly, dissolved earlier this year on May 14. It was clear that the ruling alliance was not ready to hold elections. A lack of funds and the worsening security situation were cited as the reasons for the delay. The chief justice has now ordered the State Bank of Pakistan to directly provide funds for the elections. 

But the government has made it clear that it won’t comply with the court’s order that it describes as ‘minority’ and ‘partisan.’ It has challenged the validity of the ruling by the three-member bench, and has reiterated its demand that the case should have been heard by the full court. The ruling coalition has pointed out the division within the supreme court and has questioned the composition of the bench that excluded senior judges. 

With the revolt within against the chief justice, the apex court is now fighting a desperate battle to maintain its sanctity. As many as 7 out of 15 judges have questioned the powers concentrated in the office of the chief justice. The conflict has taken a more ominous turn as the disagreements have come out into the open. It has tarnished the image of the apex judiciary and affected public trust and confidence in the judicial process.

With the government on a defiant path and the split within the apex court, the situation is heading towards breaking point. Going against the court order would intensify the clash of institutions and deepen the constitutional crisis. The clash of institutions and ongoing frictions have eroded the writ of the state.

There has been an instance in the past where a prime minister lost his job for rejecting the court order. It remains to be seen what action the court will take against the government for defying its order, but any drastic action by the court could completely destabilise the country already facing multiple crises. 

With the country in the middle of an economic meltdown and with the democratic political process on very shaky ground, any deviation from the constitution will further weaken an already fragile democratic process. The matter seems to be completely spinning out of everyone’s control. With no resolution to the conflict in sight, the country is heading towards an uncharted course.

Some reports suggest that the government may declare a state of emergency. But such a move would be seen as a virtual declaration of war against the top court, and pit the two institutions of the state against each other, with disastrous consequences. By undermining the authority of the supreme court, the political leadership will only strengthen the forces of despotism. 

What is most worrisome, is that the crisis could suck the military more deeply into the political fray. Any move to get the army directly involved in emergency rule could spell disaster for both the country and its institutions. Pakistan has witnessed many serious political crises in its history, but the current chaos seems far more consequential than any before it, with the country on the verge of institutional breakdown. The clock is ticking but the country’s power elite appear to be least troubled by the gathering storm. 

- Zahid Hussain is an award-winning journalist and author. He is a former scholar at Woodrow Wilson Centre and a visiting fellow at Wolfson College, University of Cambridge, and at the Stimson Center in DC. He is author of Frontline Pakistan: The struggle with Militant Islam and The Scorpion’s tail: The relentless rise of Islamic militants in Pakistan. Frontline Pakistan was the book of the year (2007) by the WSJ. His latest book ‘No-Win War’ was published this year. Twitter: @hidhussain