A Polarised Polity And Its Warring Institutions

The March 1 verdict of the Supreme Court, instructing the president and governors to consult with the ECP and decide the date of elections in Punjab and KP, has been mired in controversy due to the manner in which the suo motu proceedings were conducted, and the simmering divisions within the apex court have come into public view.

Dissenting judges on the reconstituted five-member bench, justices Mansoor Ali Shah and Jamal Khan Mandokhail, questioned the invocation of the apex court’s extraordinary jurisdiction under Article 184(3), especially when matters were sub judice at the respective provincial high courts.

On the earlier, larger bench hearing the suo motu case, Justice Yahya Afridi observed that “the peculiarly charged and unflinching contested political stances, taken by the parties warrant this Court to show judicial restraint to bolster the principle of propriety”. In his dissenting note, Justice Afridi dismissed the petitions so as to not “offend the hierarchical judicial domain of the High Court as envisaged under the Constitution”.

Justice Athar Minallah, who was also removed from the bench by CJ Bandial, echoed Justice Afridi’s position in his own dissenting note by stating that the CJ’s order did not appear “consistent with the proceedings and the order dictated in the open Court”. Justice Minallah wrote that “questions regarding the legality of the dissolution [of provincial assemblies] involve far more serious violations of fundamental rights”, and that the matter of election dates was “definitely premature”.

In the earlier phase of General Bajwa’s reign, the SC emerged as a partner of the miltablishment by throwing former PM Nawaz Sharif out of office and disqualifying him for life – a punishment that the incumbent CJ has recently termed as “draconian”.

Federal minister for law and justice, Senator Azam Nazir Tarar, called the SC judgment a “4-3 verdict“. He implied that certain apex court judges, who would have dissented against the majority opinion of the final five-member bench, were deliberately removed so as to “reorient” the judgment to suit this particular outcome.

Regardless of the politics being played around this judgement, two judges who recused themselves from the larger bench have been in the public eye for their alleged bias in favour of Imran Khan and his party. This was nevertheless an extraordinary development.

The polarisation that afflicts Pakistan appears to have impacted the senior most judicial authorities of the country. The formation and “reshuffling” of benches to hear cases, though the sole prerogative of the incumbent CJ as per the SC rules, also came into question as Justice Qazi Faez Isa openly questioned the practice in a written order passed on the same day that the larger bench issued the verdict on elections.

Over the past few years, the SC has become the arbiter of matters that ought to have been resolved by the parliament. In the earlier phase of General Qamar Javed Bajwa’s reign, the Supreme Court emerged as a partner of the miltablishment by throwing former PM Nawaz Sharif out of office and disqualifying him for life – a punishment that the incumbent CJ has now termed as “draconian”. The warring quasi-democratic actors also ended up surrendering their power and letting the courts adjudicate matters that are better settled in the political arena. No wonder the courts are now being blamed for ‘bending over backwards’ and distorting the law to issue judgments that suit a certain former premier.

The detailed judgment on the disqualification of former PTI provincial assembly members, who voted against the Punjab chief minister nominee, is yet to see the light of day. Allegations of “bench fixing” have been raised given that most important political cases have mostly been handled by a select number of judges. Such benches have completely ignored the senior most judges for unexplained reasons.

At a time when parliament should have re-emerged as the ultimate forum for settling the big questions of the day, the courts seem to be in charge; partly because the miltablishment has taken a back seat, as it no longer wants to be seen as a proactive player.

Pakistan’s political system after a six-year-long semi-authoritarian spell is trying to re-adjust. At a time when the parliament should have re-emerged as the ultimate forum for settling the big questions of the day, the courts seem to be in charge. Partly, this has to do with the backseat taken by the miltablishment as it does not want to be seen as a proactive player given the immense pressure exerted by its erstwhile protégé. But even if that were not the case, the political actors have little faith in the parliament. They all look towards ‘Gate No. 4’ of General Headquarters (GHQ) in Rawalpindi. Currently, no one knows what the GHQ is thinking as ‘Hafiz doctrine’ is still a work in progress. What we do know is that Imran Khan wants to meet the Army Chief but the latter is yet to show interest in this proposition.

In the meantime, Imran Khan continues to evade arrest and has asked for the permission of the Chief Justice to appear before courts via video-link as he fears for his life. Khan in no uncertain terms continues to accuse a senior ISI officer of plotting to kill him. This is unprecedented, as earlier PMs were careful in not burning bridges with the deep state.

The source of Imran Khan’s confidence and bravado is twofold: first, the huge support he enjoys within the influential sections of a deeply polarized society, and second, the continued backing he receives from within the ‘system’. One illustration of the latter phenomena is the extraordinary relief that he and his party have been getting from the superior courts.

Historically, the permanent establishment – military and judiciary – have worked in unison. In the current crisis, a divergence is clear. The divisions within the ‘system’ are likely to intensify in the next few weeks. The winner will steer the course of events.