There has hardly been any other instance in the country’s history, with the exception of periods of military rule, where the government has so brazenly defied the Supreme Court order. There is no ambiguity in the detailed Supreme Court verdict, which says that a political party cannot be denied its right to contest elections and be recognized as a parliamentary entity – photo Orfoline.com

 

It Remains to Be Seen How a Divided Judiciary Can Stand up to a Defiant Govt
By Zahid Hussain
Pakistan

 

The country seems to be heading towards a constitutional breakdown as state institutions clash within and among themselves.

A defiant government  refusing  to comply with the  apex court order  and the widening divide within the top court itself has created a very dangerous impasse. The desperate efforts by the military-backed regime to tame an assertive judiciary have heightened the crisis of the state. The endgame of the ongoing confrontation is uncertain.

Apparently, it was the unholy nexus between a shaky ruling coalition and the Election Commission of Pakistan (ECP) that precipitated the crisis. In an unprecedented act of defiance, the two have refused to implement the  July 12 majority ruling  that the PTI be given its due share of reserved seats for women and minorities in the national and provincial assemblies.

What seems to have encouraged their non-compliance is the simmering tension among the top judges  becoming public . The open split between the outgoing chief justice and the  senior puisne judge  is now being fully exploited by the PML-N-led government to further widen the divide that would allow the ruling set-up to undermine the apex court’s authority.

It is quite apparent that the government is betting on the chief justice to tilt the balance in the court in its favor. The  latest ordinance  issued by the president has virtually restored the powers of the chief justice as master of the roster, which had been restricted by earlier legislation. Unfortunately, many have perceived the role of Chief Justice Qazi Faez Isa in the entire matter as something not expected from the top judge of the country.

Within hours of the promulgation of the ordinance, the CJ restructured the three-member Practice and Procedure Committee by removing Justice Munib Akhtar, the third senior-most member, who was among the majority judges in the reserved seat ruling. Justice Mansoor Ali Shah, the senior puisne judge, has  refused  to be part of the committee and has questioned the legality of the ordinance.

Referring to the immediate restructuring of the committee as unnecessary and the inclusion of a preferred member as undemocratic and a “one-man show”, Justice Shah wants a full court review of the ordinance. But the question that is being asked is whether the chief justice, who is due to retire next month, is ready to defend the independence and sanctity of the supreme judiciary. Many have seen his role as divisive.

This is being perceived as something that will only encourage the government to further undermine the apex court. It’s a dangerous game that could destroy the entire system, pushing the country towards a state of anarchy.

The refusal to reallocate the reserved seats is part of the government’s plan to achieve a two-thirds majority in parliament; this is required to carry out a constitutional amendment intended to clip the powers of the top judiciary under the cover of a so-called judicial reform package. The ruling coalition has not given up on its plan, despite its defeat in mustering the required numbers in its previous attempt.

Meanwhile, the government has made  changes in the election rules  in order to stall the implementation of the Supreme Court ruling. The National Assembly Speaker has also  written a letter  to the ECP telling it that the court order could not be acted upon. The stand-off between the government and the judges seems to have intensified after the release of the majority order.

The federal law minister has outrightly rejected the detailed verdict, declaring that the recent amendments in the Elections Act were in play, and thus, as per the law, it was not possible to ‘reverse the clock’ with regard to the status of the lawmakers. He said there were a lot of questions that the detailed verdict does not answer. He maintained that parliament’s right to legislation would have priority over the apex court’s verdicts.

There has hardly been any other instance in the country’s history, with the exception of periods of military rule, where the government has so brazenly defied the Supreme Court order. There is no ambiguity in the detailed Supreme Court verdict, which says that a political party cannot be denied its right to contest elections and be recognized as a parliamentary entity.

While it was an 8-5 judgment, three dissenting judges have agreed that the PTI does exist as a parliamentary party and thus cannot be denied its due share of reserved seats. What the government is not willing to accept is that, whether it likes it or not, the Supreme Court verdict is binding on all state institutions.

Any defiance would lead to a serious constitutional crisis that could bring down the entire edifice of state. The role of the current ECP has been most dubious from the outset. The electoral watchdog never acted as an impartial body guaranteeing free and fair elections. Its reluctance to implement the apex court order gives credence to allegations that it is being dictated to by the security establishment.

What is happening now is largely the result of the controversial elections conducted by the ECP in February this year. A manipulated election installing a government of questionable legitimacy has distorted the entire political system.

The detailed majority judgment is a  damning indictment  of the role of the election body. It points out that the ECP’s unlawful acts were prejudicial to the PTI, and that by “denying the recognition of a major political party and treating its nominated candidates as independents, they not only compromise the rights of these candidates but also significantly infringe upon the rights of the electorate”. As the verdict points out, such unlawful actions “ corrode[s] the institutional legitimacy ”.

Justice Mansoor Ali Shah, who wrote the judgment, also warned that the court order is binding and any non-compliance could have serious consequences. It is indeed a test for the top judiciary that is expected to defend its constitutional authority and maintain the rule of law. It remains to be seen how a divided institution can stand up to the onslaught. But more importantly, can a political structure survive with all these perils?

(The writer is an author and journalist)