Institutional meltdown
Rashed Rahman
The business of writing a weekly column has become increasingly stressful in recent days. One reason for this is the fast, and increasingly speeding up, pace of events. Second, perhaps column writers are forced to repeat the same facts and arguments, an endeavour that risks reader burnout. Nevertheless, all these obstacles notwithstanding, the column beckons.
Pakistan has been witnessing a clash between the institutions of the state. Foremost mention in this regard belongs to the superior judiciary (particularly the Supreme Court or SC) on the one hand, and the executive (federal government) and parliament on the other. The three pillars of the state therefore appear at daggers drawn. The manner in which this conflict is playing out resembles nothing more than a virtual institutional meltdown. At the time of writing these lines, the breaking news is that a joint session of parliament has passed the Supreme Court (Practice and Procedure) Bill 2023, clipping the Chief Justice of Pakistan (CJP) Umar Ata Bandial’s suo motu powers and his sole prerogative to set up benches of the apex court, especially in sensitive political cases.
How have things come to such a pass? The explanation is neither easy, nor without twists and turns throughout our history. But if this complex history can be boiled down to its essentials, it is the role of the powerful military establishment and its repeated interventions in politics that all roads lead to. This includes four military dictatorships, and the penchant of the military establishment to create, nurture and bring to power new political leaders since at least General Ziaul Haq’s regime. It is another matter that each time, the cat’s paw sooner or later falls out with its creator, leading to fresh crises that have both similarities and some differences with past such endeavours. To mention in one breath the likes of Nawaz Sharif and Imran Khan, despite what appears to be their current ‘fight to the death’, is indicative of this mixed up and down fate of all satraps of the military establishment.
Of course the military establishment’s efforts have received legitimacy for their own seizures of power and the birth of ‘new’ collaborative leaders from our superior judiciary, starting from the infamous ‘doctrine of necessity’ authored by then CJP Munir in the late 1950s to the disqualification and imprisonment of Nawaz Sharif in 2017. Along the way, the superior judiciary can also ‘boast’ of its hanging of Zulfikar Ali Bhutto, cooperation with Ziaul Haq’s distortion of Pakistan’s polity and culture through so-called Islamisation, and giving Pervez Musharraf the ‘gift’ of the power to amend the Constitution without even being asked!
Musharraf’s removal of then CJP Iftikhar Muhammad Chaudhry, the imposition of an emergency that confined all judges of the superior judiciary who refused to accede to his unconstitutional and illegal dictatorial wishes, gave rise to the Lawyers Movement, demanding the restoration of the judiciary. That did eventually transpire, swallowing up in the process the Musharraf regime. But one unintended consequence of this victory was the growing tendency of the restored judiciary to flex its muscles in matters political. CJP Bandial’s handling of suo motu cases and formation of benches has proved so controversial that the government felt it had no choice but to fight back through parliament. Interestingly, while the government has succeeded in its front foot strategy against the CJP and his handling of the affairs of the apex court, this development may have triggered a change of heart in that the CJP, reluctant all along to accede to the government and other stakeholders’ demand that the full court hear cases pertaining to, for example, the Punjab elections, has reportedly now reached out to his brother judges to try and heal the breach in the ranks of the SC judges.
However, CJP Bandial may have changed tack too late. The government’s (and many observers’) perception that the CJP has proved in practice alleged partiality for Imran Khan and his campaign to keep the country on the hop and destabilised to open up the possibility of him being returned to power, has dealt serious blows to the prestige, dignity and respect of the CJP and indeed the SC as a whole.
In the joint session where the bill clipping the CJP’s powers was passed, speeches made by parliamentarians from the treasury benches (the opposition, such as it was, spent the entire session raising loud slogans while being gathered in front of the Speaker’s dais) argued that political logic and the ground realities made holding elections in Punjab first tantamount to skewing unfairly the prospects of all electoral stakeholders in the federation in the general elections later, given the preponderant weight of Punjab in the parliamentary structure. They therefore argued once again, despite the controversial three-member bench of the SC’s ruling to hold the Punjab elections on May 14, 2023, that all elections, National and provincial Assemblies, be held on the same day. In a separate session, a resolution to this effect was passed by the Senate, the objections of the PTI opposition notwithstanding.
The question of providing Rs 21 billion to the Election Commission of Pakistan (ECP) by the federal government on April 10, 2023, as ordered by the SC, could not be resolved so far, and a Ministry of Finance summary regarding the matter has been referred to a National Assembly committee to pore over and decide on the matter. This implies the ECP will be unable to report on it to the SC on April 11, 2023, as ordered. What that will produce is perhaps a subject for another day, another column.
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