The drama playing out daily in the Supreme Court of Pakistan has not only brought the third pillar of the state in direct conflict with the legislative and executive arms, but has added to the uncertainty and confusion prevailing in the country – Picture Asia Times

 

A Judicial Meltdown

 

The superior judiciary seems as politically polarized and divided as the rest of society. Who is responsible for this and is there a way out?

Eos asked six legal experts their views on the current judicial and constitutional imbroglio, currently playing out in the higher courts of Pakistan. Each was asked the same six questions:

• How do you assess the current scenario playing out in the higher courts of Pakistan? Is it a constitutional crisis?
• If it is, who is primarily responsible for the crisis? And if it is not, who is responsible for creating the perception of a crisis?
• The Parliament recently passed a bill constraining the powers of the chief justice vis a vis taking suo moto actions. Do you think it was necessary?
• In 1997, we saw the formation of two parallel Supreme Courts, which eventually led to the ouster of Justice Sajjad Ali Shah as the CJP. Is the current crisis worse than 1997? Are there any parallels between the two?
• There seems to be as much polarization within the higher judiciary as there is among Pakistan’s political parties. What’s the way out? Can sins of the past be considered past and closed or does there have to be a reckoning to move forward?
• Is there any other aspect of the current situation that you feel is not being given enough attention?

Salahuddin Ahmed

Salahuddin Ahmed Advocate Supreme Court

• There are two inter-lapping constitutional crises unfolding simultaneously. One is a political dispute between the PDM [Pakistan Democratic Movement] and the PTI [Pakistan Tehreek-i-Insaf], regarding the timing of the Punjab and KP [Khyber-Pakhtunkhwa] elections. The other is an internal conflict between Supreme Court [SC] judges regarding the allocation of judicial power, stemming from a distrust of each other’s motives. Although the judicial conflict arose far before the electoral dispute, it has certainly had an impact on its adjudication. Similarly, political parties have contributed to the judicial crisis by painting different judges as champions or enemies of their respective political causes.
• As always, deciding who is responsible depends on where you start the story. As far as the political crisis is concerned, the proximate cause is, of course, the refusal of the ECP [Election Commission of Pakistan] and the PDM government to hold elections in KP and Punjab within the constitutionally mandated 90 days.

On the other hand, if you start the story earlier, the problem could be PTI’s decision to dissolve the KP and Punjab assemblies prematurely, thus ensuring provincial elections and national elections would not take place simultaneously under neutral caretaker set-ups at both levels, besides incurring billions in additional costs. Although, in my personal opinion, a chief minister’s advice to dissolve the assembly is his constitutional prerogative and ultimately a non-justiciable political decision, some do question whether this discretion is absolute.

Let us say the chief minister advised dissolution only three weeks before the assembly’s term was to end. Would the nation still have to incur tens of billions in additional electoral costs just because one party deemed it politically advantageous to have national and provincial elections separately? Others ask whether a chief minister may advise dissolution without a cogent reason — such as a hung assembly or the desire to re-seek popular mandate after a major political or constitutional decision, especially when voters elect assemblies with a mandate for five years. After all, it was the so-called electoral mandate given by the voters, to a party rather than an individual, which persuaded the SC to disallow dissenting votes in the Article 63-A case.

The drama playing out daily in the Supreme Court of Pakistan has not only brought the third pillar of the state in direct conflict with the legislative and executive arms, but has added to the uncertainty and confusion prevailing in the country. If anything, the superior judiciary seems as politically polarized and divided as the rest of society. Who is responsible for this and is there a way out?

Moving further back, some blame the crisis on the destabilization of the Hamza Shahbaz Sharif government in Punjab through the SC’s 63-A judgment. That verdict forbade votes of defectors/conscientious objectors — pick the appropriate term as per your political views — from being counted in the chief minister’s election, in disregard for the clear language of the Constitution. The SC effectively admitted, in that case, it was rewriting the Constitution but said it was justified in doing so on a deeper understanding of the spirit of the Constitution.

When that decision based on the “underlying spirit” of the Constitution is placed together with the SC’s insistence on adherence to the letter of the Constitution in the Punjab elections case, it raises several questions. In the interpretation of the Constitution, some judges tend towards textualism while other judges prefer a purposive approach. But it is disquieting when the same bench veers from radical purposivism to strict textualism within the space of months.

The judicial crisis, on the other hand, stems from two co-related causes. The main cause is the presidential reference against Justice Qazi Faez Isa. Several PTI leaders now publicly blame that reference as being the joint brainchild of then law minister Farogh Naseem and the military establishment. However, the failure of some judges at the time — including Chief Justice Umar Ata Bandial — to recognize this and treat it accordingly, created deep and abiding rifts. Unfortunately, as a result, our intelligence agencies were again successful in dividing and weakening the judiciary.

The co-related cause, in my opinion, is the consistent trend, since 2017, of SC decisions in favor of PTI and against political parties/leaders forming part of the PDM — barring one notable exception which can be the subject of a whole new discussion. This evident trend has been a cause of concern for many judges, but voicing this concern openly has led to their perceived exclusion from, or marginalization in, benches hearing such cases.

• Yes, it was absolutely necessary. The bars, civil societies, political parties and, in recent history, at least eight SC judges have publicly criticized the CJP’s discretion in the initiation of suo motu, formation of benches and fixation of cases. It would have been optimal, in my opinion, if the structuring of the CJP’s discretion had been done through a rule-making exercise, effected by a full court of the SC itself. But how is the full court supposed to do such rule-making if successive chief justices refuse to even call a full court meeting for this purpose?

Law, like nature, abhors a vacuum. Because of the apex court’s failure to structure the discretion of the chief justice, Parliament had to step in. In my view, the proposed law neither infringes upon judicial independence — rather, it promotes judicial independence by making exercise of judicial power by the SC more broad-based and not concentrated in the person of any one judge — nor does it exceed the limits of parliamentary power as set out in Article 191 and Entry 55 of the Federal Legislative List to the Constitution.

• The crisis is bad but I don’t think CJP Bandial is anywhere near as isolated as Justice Sajjad Ali Shah was towards the end. Personal demeanor counts for a lot. The divide in the court today seems roughly even. But the reputation of the SC, as a whole, is in a free-fall. Judgments announced by like-minded judges hunkered in opposing bunkers do nothing to inspire public confidence. They give rise to allegations of political partisanship and render the legitimacy of such decisions questionable. I think perhaps the right time to heal these rifts was right after CJP Bandial took over as chief justice. The review judgment in the Justice Qazi Faez Isa case was yet to come. Had the dissenting note in that review judgment been different, or less strident in its tone, I think our judicial history might have taken a different turn.
• One hopes, of course, that judges of the SC can rise above their differences and protect the reputation of the institution from permanent damage. In my opinion, saving the SC’s reputation for political neutrality and its public credibility and legitimacy are issues of equal, if not greater, constitutional import as the timing of elections. Given recent history, however, I am not optimistic.
• I think I have covered the most important elements.

This is a test for the PTI as a political party, like the PPP and PML-N faced at the time of the Charter of Democracy. Will PTI realize that democracy can only be strengthened by acknowledging past mistakes and engaging in dialogue with political parties? Or will the PTI continue to shun political parties and attempt to woo the establishment?

Salman Akram Raja

Salman Akram Raja
Advocate Supreme Court

• It is a constitutional crisis in a deeper sense than is being appreciated on the talk-show circuit. The issue, ultimately, will not be about the legacy of one set of judges or another. The very idea of the SC is being demolished.

The SC exists as the apex court on account of the awe and the admiration in which it is held. There has to be a red line with regards to the challenge to its authority by the government of the day and the political leadership. That red line has now been erased. The 90-day election issue was a straightforward issue of implementation of a constitutional direction. The government and its backers had decided to defy this. This led to one gimmick after another. The issues regarding formation of benches and the circumstances in which proceedings under Article 184(3) should be entertained are important. These issues have simmered for years. They have now erupted and have ended up aiding defiance of the basic and fundamental requirement of the Constitution — that there be elected governments in place at all times except the 90-day window for holding of elections.  In the constitutional scheme of things, this is a higher value than any other.

This crisis will end with a diminished SC and a strengthened establishment. We are in the process of going back decades, even if we end up with a SC in which the formation of benches is done more collegially than before and Article 184(3) is subjected to the rules. These rules will always contain the possibility of exceptions.

• The government is primarily responsible. There was no real issue with regards to the holding of elections after the dissolution of the provincial assemblies, and none was raised in the weeks of litigation before the Lahore High Court [LHC]. The Constitution itself sets the 90th day as the Election Day. The governors or the president cannot defeat the Constitution by not fixing a date no later than the 90th day. The justiciability of a dissolution by a chief minister was never raised as an issue and still hasn’t been by the government.

While there are judgments of the LHC and the Balochistan High Court [BHC] examining dissolutions, these were contentious and turned on very different facts. There is also a Peshawar High Court [PHC] judgment which, correctly in my view, examines the global jurisprudence on dissolutions of assemblies by leaders of the house and finds such dissolutions non-justiciable. The courts should not get into laying down the grounds for valid as opposed to invalid dissolutions. This only serves to draw the courts into the political thicket. Enforcing a clear constitutional requirement to hold elections is not to be drawn into a political question. A distinction must be made between subjective political actions and clear legal and constitutional limits. Obeying these limits may have political consequences, but that does not make the matter political in nature.

The perception of the crisis has been deepened by the divide within the court.

• There are two aspects to the bill. One places the power to make benches in a three-member committee of the CJP and the two senior-most judges. In principle, this is acceptable. The second aspect of the bill is the creation of an intra-court appeal within the SC in decisions in 184(3) matters. This is a substantive change and not one that deals with procedure. In my view, this required a constitutional amendment.

The timing of the bill is meant to aid the violation of the Constitution underway. I don’t think any judge of the SC will hold that elections are not required to be held within 90 days, or now, at a date as close as possible to the 90-day limit, given that the Election Act 2017 prescribes a minimum period of 54 days from the date of notification of the election schedule to voting day.

• There is no parallel yet, though we are close. One bench of the SC must not stop another from working.
• Reckoning is a slippery slope of incrimination and diversion from the real issue. The Constitution must be obeyed today. Decisions in the past that are considered objectionable should be overruled in due course.
• This was a historic opportunity to push back against red lines determined by the establishment. We are losing that opportunity by falling victim to partisan politics. The present moment is not about PTI or the Pakistan Muslim League-Nawaz [PML-N] or the Pakistan Peoples Party [PPP]. It is about contesting the ability of the establishment to order the political landscape of the country. We are losing that opportunity, yet again. The intelligentsia has fallen victim to partisan politics as much as all others have. Too many people feel that their aversion for one political party or politician is enough to justify looking away as the establishment gets away with its designs yet again.

The desire of certain political players to act outside of the mandate of the Constitution, in collusion with other players who refuse to learn their lessons, is not a new phenomenon in Pakistan. Viewed from a historical lens, the primary responsibility will, hence, always rest upon the unelected, uniformed and unrepentant actors who cannot stop themselves from fiddling with the levers of power.

Reema Omer

Reema Omer
Lawyer and Legal Adviser for the International Commission of Jurists

• What we see in the SC is the tipping point of a crisis that has long been in the making. There are many facets to this crisis, including the perception of courts as enablers of political engineering and “hybrid regimes”, as well as what Justice Mansoor Ali Shah has called “an imperial court”, run by a one-man show — in other words, the appearance of a dictatorship by the CJP. Both, of course, are interlinked and have a direct bearing on the independence of the judiciary, a cornerstone of the Constitution of Pakistan.

That said, this crisis also presents the SC with an opportunity to address longstanding issues related to perceptions of “imbalance” within the court and the long history of the SC’s involvement in political matters, delivering judgments that damage democracy, undermine the Parliament, and give an appearance of partisanship.

• If we start our analysis from January 2023 and the dissolution of the Punjab and KP assemblies, the government and ECP are responsible for creating the on-going crisis, by delaying elections mandated by the Constitution to be held within 90 days. CJP Bandial too could have shown restraint and waited for the case of delay in elections to come to the SC instead of taking suo motu notice in the manner that he did. And even if he were to take the case up in the SC’s original jurisdiction, he could have formed a less controversial bench.

But this would be a myopic view, as the crisis we face today did not begin in January 2023. We must also look at Justice Saqib Nisar’s tenure as the CJP and the controversial, legally problematic judgments passed during his time that had far-reaching political consequences. We must also look at the mala fide reference against Justice Isa and how he was treated by some of his peers in the SC. We must look at how the chief justice excluded Justice Isa and other senior judges of the SC from politically sensitive cases and how the perception grew of the CJP assigning such cases to a “like-minded” bench.

And we must look at the SC’s advisory opinion on Article 63-A, which changed the political landscape at the time and, according to dissenting judges on the bench, was akin to rewriting the Constitution. We must also consider the political events since the vote-of-no-confidence [VONC], leading to the dissolution of the Punjab and KP assemblies — at a time when Pakistan was gripped by multiple challenges — for cynical reasons, to push the country into more chaos and force general elections.

And of course, most important of all, we must consider the role played by [former army chief] Gen [retd] Qamar Javed Bajwa and others in the “establishment”. Gen Bajwa is now admitting to his own as well as his institution’s unconstitutional role in initiating and precipitating this crisis through political management and engineering, which has left a lasting and adverse impact on all institutions and segments of society.

• The bill passed by Parliament, which is yet to receive the president’s assent and become law, goes beyond regulating the CJP’s power to invoke suo motu jurisdiction. The bill provides that a committee comprising the CJP and two senior-most judges of the SC, shall take decisions regarding bench formation as well as when the SC can take up cases using its original jurisdiction under Article 184(3), which includes but is not restricted to suo mou cases. The bill also gives aggrieved parties the right to appeal judgments passed by the SC under Article 184(3).

For more than a decade, the bar, international non-government organizations, civil society organizations, and even judges themselves have been calling for such reform. For example, the United Nations’ Special Rapporteur on the Independence of Judges and Lawyers expressed concern in her 2012 report about the SC’s arbitrary exercise of suo motu powers and the denial of appeal to aggrieved parties.

The longer the crisis continues, the more scrutiny CJP Bandial will face | Lahore High Court

This context is important because the SC — particularly chief justices, starting from the former CJP Iftikhar Chaudhry to the current CJP Bandial — paid no heed to these concerns. And instead of regulating and structuring their powers, they assumed even more powers to the office of the CJP through their judgments.

Ideally, the SC should have regulated the use of Article 184(3) and structured powers of bench formation through revising rules of the SC. Despite multiple judges of the SC, former and current, reminding the CJP of how the existence and use of such discretionary powers are hurting the SC’s perception as an independent adjudicator, we saw no change.

In this context, it was necessary for Parliament to legislate in order to address these issues. The bill was passed with some haste and can be improved, but contrary to what some legal experts are arguing, it does not in any manner impede on the independence of the judiciary. On the contrary, it strengthens judicial independence, by safeguarding the SC from arbitrary interference from within the court.

• It is too soon to say which is worse and comment on the parallels, as the current divide in the SC is still unfolding and we cannot predict how it will end.

In A History of the Judiciary in Pakistan, [senior lawyer] Hamid Khan writes: “The Chief Justice (Sajjad Ali Shah) had antagonized many people within the judiciary…since he was becoming increasingly intolerant of any differences of opinion or dissent within the court.” He adds, “The senior judges were being kept off benches constituted to hear important constitutional cases”, and suggests, “Sajjad ought to have taken steps to build bridges with them (his peers in the SC). After all, it was his responsibility to carry his colleagues along with him and not alienate them.”

For the CJP, perhaps these are some lessons that can be learnt from the 1997 crisis to ensure a resolution that keeps the independence and dignity of the SC and the CJP’s office intact.

• There can be no moving forward without reckoning with the past. Expecting the victims of the “hybrid regime” to move on without any justice and accountability is not just naïve but also sets the wrong precedent.

This is a test for the PTI as a political party, like the PPP and PML-N faced at the time of the Charter of Democracy. Will PTI realize that democracy can only be strengthened by acknowledging past mistakes and engaging in dialogue with political parties? Or will the PTI continue to shun political parties and attempt to woo the establishment? Given the PTI’s brand of populist politics, according to which Imran Khan is the only true savior and representative of the people, doing “jihad” against all other political leaders who are “looters”, “plunderers”, and “foreign agents”, it would be an enormous task for the party to change its method and its brand.

The coalition government too is strengthening the military establishment and weakening fundamental freedoms by continuing with oppressive policies and practices of enforced disappearances, arbitrary detentions and media censorship. The perception that the government is running away from elections to cling on to power and, in doing so, is willing to further empower the military establishment, is also troubling. Authoritarian populism is a challenge to democracy in Pakistan today — perhaps a novel one in the form it exists in — but the establishment’s unconstitutional manipulation of the political process remains a central challenge.

• Many commentators argue reform of the CJP’s powers and other procedures related to the functioning of the SC are important, but now is not the right time to raise them.

Advocates pushing for reform of the SC’s procedures, including structuring the CJP’s powers to make them more democratic and transparent, have faced opposition on this ground for more than a decade. During Justice Chaudhry’s tenure, we were told it was not the “right time” as the judiciary had just won independence and even fair criticism would weaken the Court. It was not the right time during Justice Nisar’s tenure either, as we were told for the first time that the corrupt political leadership was being held accountable and we must stand with the CJP. And it is not the right time now, as we are told we should all only focus on ensuring elections are held within 90 days of the assemblies’ dissolution.

If we continue going down this route, there will never be a “right time” to bring about reforms in the SC. How the SC functions is not merely an administrative issue but one that is deeply tied with the independence of the judiciary — which is a salient feature of our Constitution too. Now is a particularly crucial time to call for reform, as dissenting voices critiquing how the court is functioning are coming from within the court itself. For a court that, for a long time, wore a façade of unanimity, this is a major development and opportunity that should not be missed.

If the objective right now is for the SC to ensure adherence to the Constitution, it should start with adhering to constitutional provisions and ideals itself — including safeguarding the SC from undue interference from within. This is also important as an openly divided court, with dissenting voices getting louder and more public by the day, also commands less authority.

The two issues of elections and how the SC exercises its powers, therefore, are not mutually exclusive but intrinsically tied.

Saroop Ijaz

Saroop Ijaz
Lawyer and Senior Counsel, Asia, for Human Rights Watch

• The present situation in the SC is obviously a crisis. The term constitutional crisis has been cheapened due to overuse in Pakistan and is often used merely to describe state and government institutions in conflict or disagreement with each other. Conflict, even robust conflict, is not a constitutional crisis since, in all forms of government, players will inevitably try and bargain more power for themselves. The moment a political crisis transforms into a constitutional one is when the constitutional framework offers no viable pathway to the resolution of the political crisis. We, it seems, are fast approaching that moment.

However, what we have right now is an acute crisis of legitimacy, where the rules of the game or terms of engagement between the players — the government and the SC — are no longer agreed upon, and that presents a grave challenge to the architecture of democracy and the Constitution. The Constitution is, above all, a document of political consensus which structures and enables the politics of a state.

• In the immediate sense, the crisis is precipitated by the SC being no longer viewed as the final arbiter of a political conflict, a role that the court has assumed post the lawyers’ movement. The court has not been viewed as “neutral” post-2009 by many stakeholders. However, given that the Court was often viewed as acting on behalf of the state, direct defiance was not an option. The fractured and complicated relationship between the state and court means that the court must draw its legitimacy from elsewhere, such as from within the court, through constitutional powers or public support. All of these are contested power sources.
• The argument for structuring the SC’s suo moto powers and to introduce consultation and due process rather than relying on the discretion of one person, is an established one with considerable evidence to support it and has been made since at least 2009. There is perhaps no good time for judicial reform in Pakistan. However, still, one would have wanted that such a fundamental question was addressed in a considered manner and not on the eve of battle and by using fog of war as an instrument. The Article 63-A decision was one such moment where a larger consensus could have been built through an open, candid debate.
• There is an obvious parallel with 1997 in terms of hostility and polarization on the bench. However, there are important differences. The post lawyer’s movement SC, which is central to the present crisis, is fundamentally different from that of 1997. Following the lawyers’ movement, the Pakistan judiciary not only enhanced its role as an arbiter of political disputes but acted as a significant political actor itself. One cause and consequence of that was the unprecedented solidarity displayed by the SC, with the CJP acting as an unquestioned leader.

However, the enhanced and empowered political role of the court and the CJP acting as paterfamilias have acted as opposing threads, thus resulting in fractures, fault lines and a complete breakdown of the post lawyers’ movement consensus. Justice Isa’s episode has resulted in a personal breakdown of relationships within the SC and this, coupled with the growing resentment within the court regarding the CJP’s powers, now means that, unlike 1997, this presents a deeper, structural challenge to the idea of “unity” within the court.

• Polarization itself is not a bad thing. In actuality, it is both unavoidable and necessary within the court and in politics. However, polarization based on ideas and principles is different from polarization based on intense hatred and dislike, which makes across-the-divide engagement almost impossible. Reckoning is aspirational in these circumstances and key stakeholders start history from their own point of advantage, like the court does from 2009, the PML-N from 2016, and PTI from April 2022.

Therefore, an attempt at “truth and reconciliation” in terms of fixing responsibilities might be just an academic idea. However, a minimum truth attempt followed by an enlightened negotiation, aimed at agreeing not to each other’s positions but rather on the rules of the game, is viable. The Charter of Democracy in 2006 is an example of this being possible. The consequences of turning every political question into a judicial question has come the full circle for all political parties and, hence, there is a tiny glimmer of hope that some consensus, maturity and learning from history is possible over the long run. Sadly, the foreseeable future is probably an all-out conflict.

• In the broader picture, the present crisis spotlights how the judicialization of politics in our security state has, over the years, led to politics being completely reduced to an elite quibble, disconnected and detached from the realities of the people.

Similarly, perhaps there is no time like right now for a real, serious national conversation on the composition of the judiciary, the appointment of judges, the viability of a separate constitutional court and how to make the judiciary a more inclusive, more democratic, and more accountable institution at the level of principle, and not as a tool used merely as a hurried bandage to help combat a raging fire.

Maryam S Khan

Maryam S Khan
Research Fellow at the Institute of Development and Economic Alternatives (IDEAS), Lahore

1./2. I shall address both questions one and two together.

There is no gainsaying that the original architect of this crisis was the military establishment, under the Gen Qamar Javed Bajwa-Gen Faiz Hameed partnership. The military’s political engineering has led us down other crises situations in the past. Because the SC is such a key player in this process of engineering, the political contestations that emerge from it are inevitably channelized through the apex judiciary. A by-product of this ‘judicialization’ is a recurrent process of constitutional crisis that involves not only jurisprudential gymnastics and reversals that reflect the underlying power struggles, but also major institutional conflicts between institutions of state and government, in which the judiciary is also directly implicated.

In this sense, behind every constitutional crisis is a larger political and institutional crisis. That should not, however, detract from the fact that the constitutional crisis is very real. This means two things: the Constitution is instrumentalized and its meaning stretched and distorted in the service of an immediate political goal, and that, in creating these constitutional distortions the apex court deepens the political crisis in an attempt to achieve a specific outcome.

In the current scenario, CJP Bandial is squarely responsible for the constitutional crisis. By assuming an entrenched partisan posture, creating a hierarchy within the SC, and systematically and strategically excluding other judges from crucial benches despite their protest, he has not only openly declared his pro-PTI agenda over the course of the past year but has also precipitated the proverbial ‘Gordian knot’ in constitutional jurisprudence. This is not an aberration in Pakistan’s constitutional history. It is very much reminiscent of the original sin of the Maulvi Tamizuddin case, when one expedient, but poorly justified, judgment led into a series of crises, simply because expedience and partiality are not natural allies of constitutional foresight.

• The bill was necessary, without a doubt. The necessity for moderating the powers of the CJP has been a theme of judicial reform since at least the time of Justice Chaudhry, when the scope and scale of the chief’s powers, especially in relation to bench formation and suo moto, and subsequently judicial appointments, gave him enormous leverage in determining outcomes in political cases while insulating him from political accountability.

The bill curtailing the CJP’s suo moto powers was presented in the National Assembly by Federal Minister for Law and Justice Azam Nazeer Tarar | National Assembly

Given the judicial-political imbalance of power over the course of the past two decades, it is not surprising that the bill has been precipitated by a crisis during a period when the government is in a position to assert itself to the extent of making the internal decision-making on suo motu more inclusive. If anything, the bill enhances judicial independence by making suo motu less susceptible to the whims of one man and, by extension, to any external influences bearing on the CJP’s exercise of power.

• The parallels between 1997 and now exist only insofar as a clear internal division in the apex court is concerned. However, unlike now, the 1997 court was a creature of the 1990s’ decade of two-party politics. It had been progressively packed by partisan judges, with a definite bias in favor of Nawaz Sharif and his PML-N. With Sharif’s big mandate in the 1997 election, the CJP found himself isolated among and ultimately neutralized by PML-N sympathizing judges.

In the present scenario, the first big difference is that the CJP can ostensibly draw upon the support of a sufficient number of judges in the court whom he himself elevated through his power of judicial appointments. The second big difference is that, while the court is itself divided, so is every other institution of state, including the military establishment. In this fractured context, the CJP-led faction in the court is locked in a confrontation with an outgoing government that will inevitably have to go for fresh polls in the next six months, against the backdrop of what will likely be a tough electoral contest.

The third big difference is that, while the CJP-led faction is evidently partisan in favor of Imran Khan and his PTI, the dissenters do not necessarily have a pro-government bias, nor are they entirely united on any other specific ground yet. It remains to be seen how they will navigate this crisis.

Thus, the current crisis is much messier, because it has huge potential for a prolonged and polarizing stalemate — both within the judiciary and between the judiciary and the government — with extremely high stakes that will only worsen political instability and institutional dysfunction in the lead up to the elections.

• The attitude of ‘past and closed’ has done nothing to ensure against such polarization and crises in Pakistan. These are an outcome of the military’s murky role in political engineering and are unlikely to disappear so long as the military is able to maintain its hegemony. Neither is it realistic to expect any kind of reconciliation in the midst of the present power struggle. What can be expected is a shift in the longstanding institutional relationship between the judiciary and the government under the pressure of this crisis, most likely in the form of a backlash from the government against the CJP-led faction, in the event of an escalation by the latter.
• None right now.

Abdul Moiz Jaferii

Abdul Moiz Jaferii
Lawyer and Political Commentator

• It is already a constitutional crisis, in that the ECP has ignored the 90-day conditional deadline to hold elections, by listing a series of excuses provided to it by departments of the executive. It will become an even larger crisis when the government acts upon its already stated position that they will disregard the SC’s decision rejecting the ECP’s delaying of the Punjab and KP elections.
• The desire of certain political players to act outside of the mandate of the Constitution, in collusion with other players who refuse to learn their lessons, is not a new phenomenon in Pakistan. Viewed from a historical lens, the primary responsibility will, hence, always rest upon the unelected, uniformed and unrepentant actors who cannot stop themselves from fiddling with the levers of power.

However, there is a significant secondary responsibility in this scenario, and it rests squarely upon the SC itself, specifically upon CJP Bandial. The failure to regulate suo moto jurisdiction after the disastrous abuse of these powers by [former CJP] Justice [Saqib] Nisar, was an institutional one. The failure to regulate after the comical disgrace with which [former CJP] Justice Gulzar Ahmed abused the suo moto jurisdiction is much more individual.

Decisions of the SC itself have asserted the need for structuring the method by which benches are made and suo motos taken. Judges such as Mansoor Ali Shah have given speeches about it and Justice Isa has written a dozen public letters about it.

A conservative response to this would have perhaps been expected from the CJP, who enjoys the arbitrary power that results from the lack of structure everyone was asking for. But to ignore these demands completely, the way the CJP has done, to refuse to even address them, is what has led to such an unprecedented display of frustration from within the court, which has hollowed out its power and even its claim to legitimacy.

• The parliament merely moved to fill a vacuum created by the lack of action from within the court. There was enough support for these reforms, as was made clear by bar representatives and from within the court itself. The government was less than well-intentioned when moving to regulate the practices of the SC at this particular time. But such was the extent of the damage suffered by the SC through its own arbitrariness, that politicians felt it possible to legislate.
• Whilst I don’t have first-hand experience of the 1997 crisis, based on what I have gathered from reading about the episode is that there was a powerful CJP making high stakes gambles against politicians in liaison with the establishment. The current crisis is of a weak and inept judicial leader attempting to stand up to the establishment’s interests without wanting to make some necessary corrections to his own position first. Whilst 1997 was unavoidable, the current crisis is easily resolvable. All the CJP has to do is get his house in order and put together a full court and lead by example in bringing transparency and structure to his court.
• It is not as simple as past and closed when one side of the judicial divide feels so slighted by those in power. We have had a judge slandered and put through the accountability ringer by his own brethren, led by the current CJP, for two years, despite there being no substantial material against him and great documentary evidence of his propriety. The then law minister argued that Justice Isa was responsible for his wife since a husband and wife are one entity in Islam. Then the law minister reminded the court of the Hindu practice of satti [the former practice of a Hindu wife burning herself alongside the body of her dead husband] to try and make his point that Justice Isa’s wife is some form of useless appendage of his.

CJP Bandial’s court sat and listened to these arguments. The first majority delivered an opinion that dilated on how Islamic injunctions required the greatest of transparency for judges. Today, when another judge’s improper communication with politicians is leaked, and when his assets are brought under a similar microscope, the CJP instead brushes off the allegations as baseless. Before you brush this off as being past and closed, you must have a balancing of the books. Even the most conciliatory of reparative actions first require truth. Only afterwards can you have reconciliation.

• The greatest loser in all this, amidst the clash of egos and explosion of frustrations, is the law. Lost in the noise is how the government is shamelessly touting a 4-3 order as against the opinion of the three judges it disfavors. The government ignores how even their favored four judge order says the LHC decision, mandating elections in 90 days, is in the field and is binding. There is no choice here for the ECP and the government between the positions taken by judges on both sides of the merits. The law is clear and it mandates elections. Hence, the government and the ECP prefer to hide in the noise and distraction instead. - Dawn