Shortly after Umar Ata Bandial was elevated to the post of the Chief Justice of Pakistan early this year, I wrote that under the prevailing circumstances, “his stint was likely to assume historic proportions, for better or worse” (https://www.najamsethi.com/for-better-or-worse/). A recent twitter thread by @reema_omer, a respected commentator on law and jurisprudence, signposts Justice Bandial’s constitutional and jurisprudential positions since 2015 in a majority of critical cases that have tilted the political landscape of Pakistan against Parliament, Mainstream Media and the Pakistan Muslim League-Nawaz. In one recent case, Justice Bandial headed a bench to write a new law into the constitution to deny the right to vote according to a parliamentarian’s conscience; in another he deemed a parliamentary party’s directive to parliamentarians to carry more weight than that of the party head to whom the parliamentary party is subservient, and now in a third case he has tried to pack the Supreme Court with junior judges against the principles of seniority, merit and competence enunciated time and again by the bar and bench. In short, is Justice Bandial fated to receive the same sorry denunciations like his recent predecessors Saqib Nisar and Asif Khosa?
Pakistan’s judiciary has been a “handmaiden of the executive”, a hangover from colonial times. Since the executive has been, by turns, in civilian and military hands, the judiciary has done “justice” to both, but always bowing to the powerful military before the civilians when they were in hybrid contention. The military has recognized the wisdom of discreetly stitching up the judiciary via its Intel agencies to legitimize its political objectives, especially since direct seizures of power via the barrel of the gun are no longer appetizing or feasible and the traditional print media that was once amenable to control and management has been overtaken by independent free-wheeling social media in the era of algorithms. The judges, in turn, have snatched better personal and constitutional terms for themselves following the successful Lawyers Movement in 2008-09 and none so much as the office of the Chief Justice of Pakistan since the time of Iftikhar Mohammad Chaudhry.
Unfortunately, over the years, bitter fighting among the civilian contenders for office has strengthened both the military and judiciary at parliament’s expense. During the PPP regime from 2008-2013, the ruling party made an attempt to legislate bi-partisan parliamentary review of postings and elevations of judges but the PMLN opposition sided with CJP Iftikhar Mohammad Chaudry and torpedoed the move. As a result, the CJP can now handpick a bench or clutch at indiscriminate suo motu power to ride roughshod over both parliament and constitutional precedence in pursuit of either political bias or personal peeve. The recent attempt by CJP Bandial to “pack” the supreme court with five handpicked junior judges, according to respected bar and bench practitioners, was aimed at thwarting the small “independent” judges group led by Justice Qazi Faez Isa who is scheduled to become CJP late next year. In a courageous outburst against the corpus of pro-Miltablishment judges recently, the little-big man from Baluchistan, a former President of the Supreme Court Bar Association, Ali Ahmed Kurd, thundered that only four judges of the Supreme Court of Pakistan led by Justice Qazi Faez Isa could be called “independent”.
The unholy nexus between the Miltablishment and Judiciary that underpinned the hybrid regime of Imran Khan has brought Pakistan to this constitutional and economic impasse. The stage is now set for a new round of innovative engineering of the state system.
Late last year, the Miltablishment came to the conclusion that its hybrid experiment with Imran Khan had come a cropper. It had discredited the military, wrecked the economy and isolated Pakistan internationally. When Khan resisted, the judges were pulled out at midnight to brandish the sword. The PDM was reluctantly eased into office on the understanding that it would call an immediate general election so that a caretaker regime handpicked by the Miltablishment could take control in the interim, giving time and space to the Miltablishment to sign on the dotted line with the IMF and appoint the next army chief, giving safe passage to the current one and sanctioning a new job for him overseas. Unfortunately, however, when the PDM regime decided to cling to office until next year and made a bid to seize Punjab in order to consolidate iyself, the Miltablishment’s plans were threatened. The more unpopular the PDM government became because of the hardship IMF program, the greater the revival of Imran Khan’s prospects of returning to office within the year and exacting his revenge against the current crop of Miltablishment leaders. So the judges rose to deny Punjab to the PDM and encourage Imran Khan to push for new elections.
If the PDM had opted for fresh elections at the height of Imran Khan’s debacle in April, the result would have yielded a PMLN win or hung parliament that would have enabled the Miltablishment to cobble a hybrid regime once again. But that moment has passed. Khan is rampaging. The PMLN is in disarray without a winning narrative. It is only a matter of time before the PDM regime packs up with a wink and nod.
But the old calculations have also been overturned. So the Caretakers are poised to rescue the Miltablishment. Facilitation by the judiciary is critical to the next stage of this enterprise. A level playing field for the PMLN – enabling Nawaz Sharif and Maryam Nawaz Sharif to lead their party in the elections –will allow it to put up a good fight and thwart Khan from storming into Islamabad. But if that isn’t possible for one reason or another, the Caretakers may be blessed with a charmed life beyond their expectations!