The judiciary-parliament tussle exposes the inadequacy of Pakistan’s Constitution

Pakistan is passing through an agonizing situation these days as two powerful institutions – the Parliament and the Supreme Court (SC)- are testing each other’s muscle and there is no constitutional mechanism to bring the conflict to an end or to say which side is right or wrong.

Perhaps the framers of the Constitution had not visualized such an eventuality and that’s why they did not incorporate any provision to address it.

This shows the inadequacy of the basic law passed unanimously by all parties back in 1973. Both the ‘warring’ parties are laced with countless powers, a factor that has added to the complexity of the problem.

The SC is seemingly divided into two groups, one with the opposition Pakistan Tehreek-e-Insaf (PTI) and the other with the ruling Pakistan Democratic Movement (PDM).

The army is the only institution that, because of its proclaimed ‘neutrality’ and influence, could bring about an armistice. So far, it has not played any facilitator role to partake in this noble and patriotic task. In fact, from the looks of it, the army is supporting the government’s point, because of which it may be regarded as a party itself, and not a neutral mediator.

The provincial assemblies of Punjab and Khyber Pakhtunkhwa were dissolved on PTI Chairman Imran Khan’s instructions on January 14 and 18, respectively. Under the Constitution, elections for the new legislatures are mandatory within 90 days of the dissolution.

After a legal battle between the PDM government and the opposition PTI, the Supreme Court set May 14 as the date for the Punjab elections. It directed the government to provide Rs21 billion to the Election Commission in addition to the staff required for security purposes.  

What if it is not a scarcity of resources due to which the government wants to delay elections until October? Could it instead be, because CJP Bandial and President Alvi will retire in September after which the on-ground situation may turn in favor of the ruling coalition?

Ashraf Mumtaz

But the 13-party ruling coalition is not inclined to meet this constitutional obligation because of its political interests. Scared of PTI’s popularity and inflation-hit voters’ revenge at the polling stations, it argued that the country could not afford to hold elections in phases because of the lack of resources.

It declared that elections across the country would be held simultaneously in October after the assemblies serve out their mandated term. On Tuesday, the Defence Ministry filed an application in the Supreme Court requesting the same. 

The term is due to complete by the middle of August, and balloting will be held 90 days thereafter.   

Even though the government got the SC order about the polls rejected in Punjab through the federal cabinet and parliament, what if it is not a scarcity of resources due to which the government wants to delay elections until October? Could it instead be, because the Chief Justice of Pakistan Umar Ata Bandial and President Arif Alvi will retire in September after which the on-ground situation may turn in favor of the ruling coalition?

To strengthen its argument against immediate elections in Punjab, the government also called two meetings of the National Security Committee (NSC), comprising political as well as military leaders. The opposition has no representation in the NSC.

The NSC reviewed the situation and decided to deal with the menace of growing terrorism before thinking of elections. Operations against terrorists in various parts of the country and the resultant killings are being projected these days, apparently, to reinforce the argument against immediate elections.

At the same time, the government is acting against the Supreme Court judges who are being regarded as ‘supporters’ of the PTI, due to their rulings.

While the parliament is condemning the Supreme Court’s decisions, the apex court is using its authority against the former as well. It has stopped the enforcement of the bill being enacted to clip the wings of the chief justice. Although the bill is yet to be passed into an act, the court’s pre-emptive strike is a strategic move. The government calls the ambush premature, but legal circles know that if the bill had been passed it would automatically become law through a laid down procedure even if President Alvi had refused to assent to it.

To ensure the elections in Punjab, the apex court issued direct orders to the State Bank of Pakistan to provide funds to the Election Commission. 

The Defence Ministry application is the latest roadblock. 

In case the SC’s orders are consistently not carried out, it will be a serious violation of the Constitution, on the basis of which the court can proceed against violators. It can even disqualify the holders of top government offices. 

On the other hand, the parliament can undo any order of the Supreme Court and call for any action against those passing the impugned order. Already, references have been moved against the judges who are being seen as “PTI allies” by their critics.

In the prevailing situation, it is not clear how the court will get its orders implemented – when even the army seems to stand fully behind the government and parliament. It is also unclear what options the supreme court will have if its orders are simply consigned to the dustbin. There is no mechanism to decide any difference of opinion between the supreme court and parliament – here, the Constitution fails.

Probably, the principle of ‘might is right’ will prevail and the judges being branded as ‘politicians in robes’ may be disrobed.

The coming days and weeks will be very suspenseful. 

- The writer is a senior and veteran journalist with a career spanning 40 years with major national and international newspapers.