It is now Pakistan’s parliament versus eight Supreme Court (SC) judges in the worst and most bitter confrontation between the two branches of the government the country has ever experienced. Neither is willing to blink in a high-stake power struggle which may lead to a complete breakdown and could even see Pakistan return to military rule in some form.
At the centre of this conflict is Chief Justice Umar Ata Bandial. In an unprecedented and controversial move, the Supreme Court’s eight judges on Thursday barred the government from implementing a bill seeking to curtail the chief justice of Pakistan’s powers once it becomes a law. Earlier on Thursday, leaders of the ruling coalition opposed the formation of the bench, calling the move “premature” and calling for the bench’s dissolution in light of the ongoing legislative process.
In a tit-for-tat move, the SC bench rushed to block a bill that has not yet become law. This SC order is in violation of a previous SC decision of 1989 when an 11-member bench of the apex court had held in Federation of Pakistan vs Aitzaz Ahsan (PLD 1989 Supreme Court 61) that, “It is a well-settled principle of constitutional interpretation that until a law is finally held to be ultra vires for any reason, it should have its normal operation.”
Pakistan’s parliament on Thursday ruled against providing funds for provincial assemblies’ snap polls ordered by the Supreme Court, in a further escalation of the conflict between the CJ and government amid months of political and economic turmoil, with the country nearing default. The CJ had already summoned government officials on Friday to seek their response on the funds for the provincial assembly polls, warning that non-compliance would have consequences. It is clear that ruling parties want to avoid the elections because they fear Imran Khan will win.
Thursday’s developments followed the SC’s April 4 order to hold elections for the dissolved Punjab Assembly on May 14. The fact that the SC didn’t order a date to hold elections for the KP assembly has raised eyebrows with some observers questioning why special attention is being given to the largest province – the centre of the power struggle – if it is just a constitutional or legal matter and no order was passed for the KP assembly.
KP is a periphery and nobody is bothered about enforcing 90 days limit for election there nor the SC is ready to hear a petition against the Action in Aid..Regulation for the last 4 years as CJ isn’t forming a bench for the HR case. SC is an arena for the elites power politics. https://t.co/socLMYYAFA
— Afrasiab Khattak (@a_siab) April 12, 2023
The SC had directed the federal government to release the election funds to the ECP by April 10 for elections to both assemblies. The court’s verdict followed a petition filed by the PTI, which had challenged the Election Commission of Pakistan’s (ECP) decision to delay the Punjab polls from April 30 to October 8 after the government refused to give funds to conduct the exercise citing the economic crisis. The PTI in January decided to dissolve the Punjab and Khyber Pakhtunkhwa (KP) provincial assemblies it controlled in a bid to force early national elections.
Pakistan faces an existential crisis and Chief Justice Bandial has become the centre of the crisis. Therefore, if Pakistan is to have any hope of coming out of this impasse, the first step will have to be his resignation to end this confrontation.
The chief justice’s conduct has come under serious criticism by other senior judges of the court but it seems to have strengthened his resolve to run his “one-man show” as described by Justice Mansoor Ali Shah and Jamal Khan Mandokhail in their judgment of March 1, 2023. The two judges had said, “The immediate danger of the imperial Supreme Court, writes Professor Lemley, is that it will damage the constitutional system by usurping the power that doesn’t belong to it; but the longer-term danger may be the opposite. The Court, by turning it in the minds of the public into just another political institution, may ultimately undermine its legitimacy and credibility of its judgments. We must ensure that our Supreme Court does not assume the role of an imperial Supreme Court with its judicial decisions restricting the power of the Parliament, the Government and the provincial High Courts.”
The division among the Supreme Court judges is yet another sign of Pakistan’s failure as a state. Judiciary was perhaps never independent as historically, it acted as an appendage of the establishment, but kept a façade of respectability. Cracks within the SC are perhaps a reflection of divisions within the establishment. Partisan observers can get excited but the fact is that all parties have violated the Constitution at one point or another. The military establishment and the political parties have not always played by the book throughout Pakistan’s turbulent history. However, the SC judges kept at least a façade of proprietary and neutrality although they were involved in the judicial murder of an elected prime minister – Zulfikar Ali Bhutto – and in the removal of other elected prime ministers through clandestine machinations of the deep state.
It is not the first time a bench under the chief justice has tried to usurp a power it does not have under the Constitution. The court has exercised the power to take suo motu notice in a blatant violation of the constitution through politically motivated judicial activism, particularly during the last 16 years. The suo motu power, as practised by the court, has no basis in the text of the Constitution. The court didn’t even mention this power when framing the Supreme Court Rules in 1980.
The conflict is rooted in the political tug-of-war between the parties of the ruling coalition and Imran Khan who has been locked in a no holds barred power struggle with his opposition. He is 70 and he knows this is his last chance to get back into power. He is gambling on his popular support to go to any extent hoping that the military’s top brass will eventually support him. However, he has become a deeply polarising figure and may have made governing Pakistan an almost impossible task. The military has mostly exercised restraint. Going by Pakistan’s history, any other leader would have been in jail by now.
The risk of complete collapse has increased with the open division among the judges of the Supreme Court. Unless Imran Khan makes peace with the military establishment, the army generals may be forced to take some extra-constitutional steps, although they would want to avoid it due to Pakistan’s dire economic situation. However, all bets will be off if Pakistan defaults, a scenario which appears to be quite likely as an agreement with the IMF is unlikely to be concluded anytime soon.
The standoff between the parliament and the Supreme Court is more than a constitutional crisis. The government doesn’t have a clear mandate but its grievances – during the recent history – against the military and the judiciary go back to July 2017 when the former army chief General (retired) Qamar Javed Bajwa and a five-member supreme court bench allegedly acted in concert to remove former prime minister Nawaz Sharif on flimsy charges that had little to do with his alleged corruption. Even Imran Khan recently held Genera Bajwa responsible for Nawaz Sharif’s disqualification.
Given the dark past of Pakistan’s superior courts who willingly condoned various unconstitutional and illegal actions of military rulers, the moral authority of the country’s judiciary is weak, to say the least. There is little doubt that Imran Khan was brought into power through conspiracies engineered by General Bajwa, with the judiciary’s help. Bajwa was happy to see Imran removed from office after the gulf between the two became too wide following the row between the two over the appointment of the chief of the country’s premier intelligence agency, the ISI. The PDM government has been working closely with the military establishment and has no intention to hold elections this year under one pretext or the other. Hence, it is preposterous for any of the major actors to claim a high moral ground in the present conflict.
Once Imran Khan was voted out through a no-confidence motion in April 2022, the ruling coalition of the Pakistan Democratic Movement (PDM) and the Pakistan Peoples Party moved to oust the PTI’s Punjab government. Following a vote of no-confidence, PMLN’s Hamza Shahbaz was elected as the chief minister with the help of the votes of 24 PTI dissident legislators.
Following a presidential reference seeking interpretation of Article 63-A of the constitution, a five-member SC bench, headed by the Chief Justice, ruled by a majority of 3 to 2, that dissident members’ votes should not be counted. The dissenting judges Jamal Khan Mandokhail and Mazhar Alam Khan Miankhel disagreed with the verdict. In the minority opinion, they stated that “any further interpretation of Article 63-A, in our view, would amount to re-writing or reading into the Constitution and will also affect the other provisions of Constitution, which has not even been asked by the president”.
However, even in the context of the judiciary’s dark history, the chief justice’s conduct has been highly unbecoming, particularly the way he formed benches by repeatedly picking his favourites – ignoring senior judges — by abusing the unconstitutional power of suo motu notices, and worst by rewriting the constitution in the case of presidential reference on Article 63(A).
In short, the state of Pakistan is in a deep mess and faces an existential crisis and the CJ has become the centre of the crisis. In the process, he has greatly damaged his credibility and that of his institution. Now no matter what he does is unlikely to be respected by not just the ruling coalition but also by his fellow judges and members of the bar as well as a large segment of the population.
Therefore, if Pakistan is to have any hope of coming out of this impasse, the first step will have to be his resignation to end this confrontation, because as they say, Caesar’s wife must be above suspicion. The phrase means that those holding important public positions should avoid even the appearance of wrongdoing. Their behaviour must always be “above suspicion”.
At the same time, the government should invite and hold talks with the PTI to set a date for elections because a political solution through dialogue is the only way out of the crisis.
The writer is former Citigroup Head of Emerging Market Investments, author and columnist. He worked with Benazir Bhutto during the Movement for the Restoration of Democracy during 1977-81 as a student union leader.
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