Pakistan is an interesting country. Every individual hitched to power yearns yo jump into the political arena– the fray– to capitalize on the situation. The Army wants to have a role in politics. The higher judiciary also wants to play politics. Interestingly, politicians, the real actors of politics, struggle for survival in politics.
The Chief Justice of Pakistan, Mr Justice Umar Ata Bandial, faces the crisis of credibility-cum-legitimacy. Mr Justice Bandial’s advice to the politicians to sit down together and come up with an agreed solution for by-elections in Punjab and Khyber Pakhtunkhwa failed to convince the listeners– and even bystanders– because he himself failed to prevent the Supreme Court from being divided on the same issue. That is, his advice foundered on the same touchstone that he established for politicians.
There is a revolt inside the house of the SC. Led by Justice Qazi Faiz Esa (who is respected widely), there are judges who differ from Chief Justice Bandial. The difference of opinion hinges on two main points: first, the absolute power vested in the chair of the CJP to take suo motu notices should be scattered amongst a bench of three or five judges; and second, the absolute authority lying in the office of the CJP to make and break benches be dissolved. Certainly, in a democratic milieu, which is fast gripping the country, an island of absolute power is anachronistic. Everyone– be it the Army or the Supreme Court– has to submit to the dictate of democracy, the spirit of the Constitution. The age of authoritarianism, in whatever form, is over.
Nevertheless, the general demand of the dissenting judges is that there should be rules to run the administrative affairs of the SC by converting it from a one-man show to a consultative body, and that, once established, the rules be followed in letter and spirit. Moreover, the rules should be such as not to revolve around the chair of the CJP; instead, the rules should be both democratic and inclusive.
Sensing the mood and resolve of the dissenting judges, Parliament passed a necessary bill, which is yet to attain the status of an Act until after the President signs it. It is known that President Arif Alvi would make his all efforts to delay signing the bill, as he sides with Mr Justice Bandial to keep on concentrating powers in the office of the CJP.
The political chaos which emerged from the premature dissolution of provincial assemblies also laid the SC exposed: first, there are judges who disagree with the misinterpretation of the Constitution, and second, there are judges who are averse to the concentration of power in the office of the CJP. Now, Mr Justice Bandial is making all efforts to show that the majority is on his side– no matter how thin that majority might be.
Mr Justice Bandial and his like-minded judges are considered the last group standing to defend the otherwise hybrid-regime experiment which brought more harm to the economy and the body politic than supposed imagined benefits. The general perception is that the group makes all concerted efforts to mould the law into a desired shape– in the name of interpreting the Constitution. In the efforts, the underlying presumption seems to be that the law is a subject which is understandable only to the interpreters and which cannot be understood by the educated class of Pakistan. Enmeshed in this fallacy, the group has been passing comments and issuing judgements which bring into question the credibility and legitimacy of the SC.
Woefully, led by Mr Justice Bandial, the like-minded judges are turning a blind eye to the decisions of the Chief Ministers of both the provinces to dissolve provincial assemblies prematurely. That is, the like-minded cohort is shying away from issuing a verdict on the validity of the decisions which ravaged the electoral mandate held by elected public representatives sitting on the opposition benches in the dissolved Assemblies. Instead, the cohort wants to set the startng point after the dissolution of the provincial assemblies. The preference is an act of blatant injustice to the people of Pakistan. The Constitution does not permit the SC to select a starting point of its own choice.
The Chief Ministers, who dissolved their respective provincial assemblies, were not holding an absolute majority in their assemblies. They did not consult the opposition leaders before dissolving the assemblies. By doing so, they created a political chaos which the like-minded cohort of the SC has been trying to convert into the favour of one political party, the Pakistan Tehreek Insaf, the main beneficiary.
Why could Mr Justice Bandial not take a suo motu notice on the violation of the electoral mandate held by the opposition benches in both the dissolved provincial assemblies? How could the like-minded cohort tolerate the premature dissolution of two provincial assemblies?
Issued on April 4, the decision is saying that by-elections be held in both the provinces on May 14, overlooking the fact that general elections are due to be held in October. The three member bench, which issued the decision, knew well that the by-election conducting exercise just four months before general elections would cost the national exchequer billions of rupees. It is apparent that the verdict is meant for forcing the Election Commission and the sitting government to hold general elections in May instead of October to save money.
To elaborate, the implied message of the verdict of April 4 is that, since the provincial assemblies of two provinces were dissolved prematurely, the general elections should also be held prematurely. Regrettably, instead of questioning the premature dissolution of provincial assemblies, the like-minded cohort is putting the whole political and electoral system into a premature mode. Regrettably, instead of resolving the political crisis, the decision has accentuated the crisis.
The political chaos which emerged from the premature dissolution of provincial assemblies also laid the SC exposed: first, there are judges who disagree with the misinterpretation of the Constitution, and second, there are judges who are averse to the concentration of power in the office of the CJP. Now, Mr Justice Bandial is making all efforts to show that the majority is on his side – no matter how thin that majority might be.
Nevertheless, the whole episode is an interesting case study to find out how a cohort of judges expresses its bias and keeps on bending the law– in the name of the interpretation of the Constitution.
