As the Supreme Court of Pakistan (SC) hears a petition against the postponement of elections for the Punjab assembly, the crisis within the Pakistani state has come to the fore. The same day the SC took up the petition filed by Pakistan Tehreek-e-Insaf (PTI), a detailed verdict authored by Justice Mansoor Ali Shah was authorized for public release. Justice Shah’s judgment reads like a scathing indictment of the way the current Supreme Court is functioning. This 27-page verdict by Justices Shah and Mandokhail dismissed the earlier suo motu case which took up the issue of the election date and who was authorized to issue such a date. However, the hearing on the PTI petition – a complaint against the Election Commission for ‘violating’ the 3-2 judgment in the suo motu case – continued.
The two ‘dissenting’ judges, Justices Shah and Mandokhail, noted that due to the charged political atmosphere in the country, the involvement and interference of the SC in its discretionary and extraordinary jurisdiction would turn it into a “political thicket”.
The judges held that the “very essence of the political system is to rectify such disagreements, but to take this key characteristic outside the realm of our political system and transfer it to the judiciary, threatens the very core of democratic choice – raison d’etre of democracy.” The judgment also conceded that “there will always be crucial events in the life of a nation, where the political system may disappoint, but this cannot lead to the conclusion that the judiciary will provide a better recourse.”
Justice Shah writes with clarity, “unbending attachment to a standpoint is often proved politically sterile. Litigation is not a consultative or participatory process and can therefore rarely mediate differences on issues where there is room for reasonable people to disagree; only a political process can resolve such issues and adjust disagreements.”
The judgment says that the decision to dismiss the suo motu proceedings was made with a majority of 4-3, which is “binding upon all the concerned.” The reconstitution of the seven-member bench was simply an “administrative act” to facilitate the further hearing of the case by the remaining members of the bench, and “could not nullify or brush aside the judicial decisions given by” Justices Yahya Afridi and Athar Minallah.
Now that we have two separate judgments on a similar issue, which one shall prevail? The farsighted analysis by Justice Shah, or the judgment written by Justice Bandial that directed the Election Commission of Pakistan to hold elections by 30 April? This may appear to be a legal point which the ongoing proceedings in the Supreme Court will have to address. In effect, a Pandora’s box has been opened, reflecting the anarchic results of an unelected institution attempting to resolve political disputes without the necessary instruments of political negotiation, compromise and bargain.
Following Justice Shah’s clear-cut observations, there is no room for judges to meddle into politics. Just as there is no justification for the miltablishment to steer the political system.
“…Litigation is not a consultative or participatory process and can therefore rarely mediate differences on issues where there is room for reasonable people to disagree; only a political process can resolve such issues and adjust disagreements” (J Mansoor Shah)
What Pakistan is going through currently is a direct outcome of the brazen interference into national political choices by former army chief Gen. (retd) Bajwa, his favored affiliate Lt. Gen. (retd) Faiz Hameed, and a handful of compliant judges who resorted to shoddy political engineering, disqualified an elected prime minister, and manipulated the 2018 elections to hand power to their favorite politician.
Their 2018 experiment has boomeranged, and like how. The populist cricketer-turned-politician that they certified as sadiq and ameen has now emerged as the greatest threat to the miltablishment’s hegemony; at least in the public discourse that is shaped by the very classes that were purposefully depoliticized and brainwashed through curricula and media controls to erect a religio-martial complex. After seven years, the engineered system is breaking up, and requires the urgent attention of political elites, lest it is allowed to implode.
Imran Khan has successfully put Gen. (retd) Bajwa on trial in the court of public opinion, while the PMLN has done the same for former ISI chief Lt. Gen. (retd) Faiz Hameed. That they are selectively choosing their targets, is besides the point. The junta faces an existential dilemma: if it intervenes to settle matters, it gets exposed further; if it doesn’t, the economy and polity are headed towards a crash. Locked in this quagmire, the Supreme Court judges continue the patterns of political mediation that have resulted in the current imbroglio.
The verdict authored by Justice Shah states that “it is high time that we revisit the power of ‘one-man show’ enjoyed by the office of the Chief Justice of Pakistan”. It says that Supreme Court can no longer be dependent on the solitary decision of one man: the chief justice of Pakistan (CJP). The apex court must be regulated through a rule-based system approved by all SC judges, and the judgment says it was essential to underline this “in order to strengthen our institution and to ensure public trust and public confidence in our Court.”
The judgment warns that “when one person has too much power, there is a risk that the institution may become autocratic and insulated, resulting in one-man policies being pursued, which may have a tendency of going against the rights and interests of the people.”
The apex court faces the unenviable challenge of protecting its legitimacy while catering to popular sentiments on the street. Whatever verdict it might issue, it would be controversial and inevitably be seen from a partisan lens.
Paragraph 39 of the 27-page judgment issues a scathing rejoinder to the CJP. It states that “the Chief Justice of this Court is conferred with wide discretion in the matter of constituting Benches and assigning cases to them under the present Supreme Court Rules 1980. Ironically, this Court has time and again held how public functionaries ought to structure their discretion but has miserably failed to set the same standard for itself leaving the Chief Justice with unfettered powers in the matter of regulating the jurisdiction under Article 184(3) (including suo moto) and in matters of constituting benches and assigning cases.”
Today, it is the Supreme Court of Pakistan that is on trial itself. Its chief justice has been attacked from all sides, senior judges have been accused of partisanship and corruption, and voices within the judiciary are challenging the arbitrary fixing of benches. The apex court faces the unenviable challenge of protecting its legitimacy while catering to popular sentiments on the street. Whatever verdict it might issue, it would be controversial and inevitably be seen from a partisan lens.
This is why Justice Shah’s timely advice is important. Until the political institutions such as the Parliament, the political parties, and the Election Commission of Pakistan are not allowed to find solutions, all attempts at arbitration led by judges are likely to be counterproductive. It is time for the SC to take a step back and review the lessons from the conduct of past ‘activist’ Chief Justices. Their decisions have often undermined democracy and constitutionalism.
Sadly, we do not have a tradition of learning anything from the past. Imran Khan’s recent utterance, that his name has been ‘struck off’ by the establishment, does not bode well. The rumors of a long-term caretaker government and indefinite postponement of elections are gaining ground. This should be a wake-up call for political parties, for the last thing they need is a repetition of 1977: when the cause of accountability before elections turned into an eleven-year-long nightmare.
If SC judges sincerely want to be apolitical they ought to welcome the bill the Parliament is considering to provide rules for Suo Moto and bench fixation that would protect them from the menace of political engineering by rogue agencies as has happened in the past. Since it would render most difficult to control a panel of 3 senior most judges by blackmail or intimidation.
Judiciary should know that all provincial and National Assemblies elections if held together would be in the best interest of the whole nation and less controversial. Census results are key to it. It should just seek assurance that politicians are willing to sit together in parliament for an October election date and establish mechanisms for a free and fair ballot.
Nation knows who to trust and it’s collective wisdom would lead us out of this quagmire.
Very well written and a insightful article
Salute to the two judges
The going ones in our judicial system in favour of Imran Khan have become a burden under which it is imploding. It never had a reputation it could be proud of. In the past they became a facilitator for establishment, and now of a political party. They are supposed to dispense justice. Are they doing that? The Chief Justice studied at Cambridge University and is a barrister. One of his predecessors, Judge Khosa, was also an alumni of similar institutions. I am sure other judges must have attended prestigious institutions of learning too. What do they learn there? How not to dispense justice! The current CJP inserted something into our constitution. I would have thought he at least learnt English language at Cambridge. He read something which is written in simple English, but his understanding and interpretation must have made his tutor feel let down. They are to blame themselves if people have a very low opinion of our judiciary.
Key to a successful tournament or match is the consensus between teams to participate willingly in it. General elections are the same. Trio of Insaafian judges have come out and want to follow the Faiz strategy of precipitating Punjab elections ahead of the general elections so the results can pre poll rig the National Assembly and KPK elections.
This has exposed the intent of the rogue judiciary and split the institution to such an extent that it cannot stand up united. If ECP is protected from succumbing to the pressure tactics a catastrophic coup by the trio can be managed till CJP powers get rationalised. Parliament ought to stand up and force this evolutionary step so a blow back from rogue political engineering assets of the past is curtailed.