A history of mishaps
At least twice in recent history have we found ourselves at the precipice of a judicial crisis - the Chaudhry Iftikhar Saga of 2007 resulted in his sacking by Parvez Musharraf and then ultimately his return as a result of the Lawyers Movement and then the tussle and stand-off between the Supreme Court and the PPP Government over the NRO in 2008-2011 that resulted in the Court finding a Prime Minister in contempt, removing him from office, and going after another.
In both these instances, the Court prevailed over the sitting executive and this has, over the years, amd this shifted the power balance towards the Court and strengthened the tendency of a number sitting Chief Justices to encroach in the affairs of the executive.
They say power corrupts, and absolute power corrupts absolutely. The increasing power of the Court has created anomalies such as CJ Saqib Nisar, CJ Khosa, and now the most recent occupant of this highest judicial office of the land. Starting from Chaudhary himself, each one of these have been accused of overstepping the mandate of the Court by initiating and taking up cases under its suo moto 184(3) provision that interferes in the affairs of the executive and giving verdicts that were not quite the shining examples of judicial restraint and propriety one would like - even by the lowly Pakistani standards.
Needless to say here that the opposite side of the equation - the government of the day - has also not behaved properly either in following the letter and spirit of the Constitution and doing whatever is necessary to avoid an ugly confrontation with the judiciary.
The current judicial quagmire
Fast forward to today and we find ourselves in the midst of another judicial crisis which is, perhaps, qualitatively different from anything we've seen in the recent past. Except, of course, the 1997 ouster of CJ Sajjad Ali Shah at the hands of his fellow judges to which the current crisis clearly has an eerie similarity.
I will not repeat the entire sequence of events that led the Bandial Court to where it is today, divided but not defeated, but reiterate that not only is the Court up in arms with the sitting Government today, it is also in open and full revolt internally, and bleeding its support of the establishment that it usually benefits from and relies upon.
The Honorable Chief Justice's desire to use article 184(3) in violation of the judicial norms (SC does not interfere in the matters before lower courts until they're decided and an appeal is filed) and to fix a bench that clearly demonstrates a bias against several senior judges. The CJ's persistent refusal to form a full-bench, include justices who may differ from him, and carry on despite significant (majority) dissent from within the bench amounts to unilaterally decide a constitutional matter of utmost importance is deeply disturbing, at best.
That justice must not only be done, it must also be seen to have been done is a bedrock principle on which our judicial system is based and the current occupant of the highest office of the judiciary seems in no hurry to uphold that important principle. It appears as if even if the last two justices standing with him decide to recuse themselves, he will deliver and execute the judgement on behalf of his original 8 fellow justices.
This is deeply unfortunate and tragic for the nascent democracy of ours where the norms and traditions of judicial independence and propriety are still being shaped. I submit that perhaps there is room to learn from the experience of other countries.
Pakistan's Madison vs. Marbury
Two particular cases from the US judicial history written almost two centuries apart come to mind. The first being Madison v. Marbury by CJ John Marshall of the United States and the second, recently announced States vs. Sebelius (The Obamacare Case) by CJ John Roberts - the current CJ of the United States.
In 1800, Democratic-Republican Thomas Jefferson defeated Federalist John Adams to become the President of the United States. After his defeat and before Adams left office, he signed certain commissions for judicial appointments that were to come into effect when delivered. Circumstances, however, did not allow some of these to be delivered in time and Thomas Jefferson upon assuming office refused to have them delivered. One of these, William Marbury who was appointed as a Justice of Peace failed to receive his commission and went to the Court against James Madison - the Secretary of the State - whose responsibility it was to deliver his commission.
On February 24, 1803, the Court rendered a unanimous (4–0) decision) that Marbury had the right to his commission but the court did not have the power to force Madison to deliver it. The details of the case are not material to the situation at hand. What is important is the end result. In finding the government at fault, the Court gave a clear ruling on the case rather than giving a confused or watered down decision or beating around the bush.
However, even in accepting the limitations of his Court, CJ Marshall managed to advance the cause of an independent Judiciary much farther. In his decision he examined, for instance, what happens when an Act of Congress conflicts with the Constitution.
Though not without its critics, Madison v Marbury is widely seen as a landmark decision that affirmed the principle of Judicial Review and helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.
Just over two centuries later, John Roberts presided over one of the most hotly debated and fiercely watched case on Obama’s healthcare reforms. Here, even though there was no such thing as a defiant executive, the sheer size and impact of the legislation coupled with polarisation of the political scene in an election year made this a very important case.
Like Chief Justice Marshall before him, Chief Justice Roberts handed a stunning decision that required him to side with the Government of the party opposite to his declared political affiliation.
Like Marshall, he (almost) found the government on the wrong side but used political expediency and a lot of wisdom to steer clear of thrusting the country into a serious crisis. Like Marshall he affirmed and created important legal principles (in this case the idea of judicial restraint). And Like Marshall, Roberts did advance his own political agenda forward but in manner that enhanced the reputation of the Court rather than diminished it.
Keeping Pakistan's current judicial crisis in perspective, several important features stand out. Take Madison v. Marbury, for instance.
First, Marshall Court did not mince words in giving the verdict thus preferring legal clarity over expediency but then also plainly acknowledging its inability to enforce.
Second, it demonstrates how judiciary, when pitched against the executive that is unwilling to follow its verdict, must intricately avoid conflict with other branches to not only avoid causing harm to the country but also to itself.
Finally, in its wisdom the Marshall Court transformed a handicap (its inability to enforce and a potential showdown with Jeffersonians) into an opportunity to advance the agenda of judicial independence thus ultimately enhancing the power of the Court.
There are ample lessons in Madison v. Marbury and States v. Sebellius for the Honorable Justices of Pakistan’s Supreme Court to draw upon and find it within themselves to do the right thing in this very challenging time for the country.
CJ John Roberts probably said it the best in his majority decision on States vs. Sebellius when he wrote, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” i.e. the Judiciary must go to great lengths to uphold the doings of a duly elected legislature even if it has to look the other way.
In pursuing truth and justice against an executive unwilling to obey, Pakistan’s Supreme Court has inadvertently taken Pakistan to the brink. It must now also bear the responsibility of bringing the country back to at least a semblance of governance and normalcy.
As this drama plays out in the next few days and weeks, the Court's failing to extricate itself from the current crisis of its own making will thrust the country into an even deeper crisis whose political and economic costs this country can ill-afford.
The Big Picture
What has been going on the Constitution Avenue for well over a month now is not just tragic but also comical. The Election Commission's position on why elections are not possible within the 90 day period stipulated in the Constitution is far from the actual reality. The excuse of not having enough money or security personnel to hold elections in Punjab is designed precisely as a weak argument to, perhaps, allow for it to be denied.
Why did the Election Commission not take the stronger and more realistic position that it cannot hold Elections in two provinces today without biasing the upcoming elections of the National Assembly is for anybody's guess. The Government certainly, but belatedly, has taken this view which is much closer to the truth and the one and only legitimate argument for delaying provincial elections in Punjab and KP.
But that is not what is under debate in our Supreme Court where the Justices on the bench have hung onto the weak argument and have refused to entertain other questions and possibilities even when raised by other justices.
This is quintessentially the kind of 'noora kushti' that usually happens in our power corridors when the intention is not to decide a matter on merit but to rule via technicalities.
The Supreme Court has had ample opportunity to extricate itself from the crisis that it has unfortunately brought upon itself.
First, after giving the erroneous interpretation of Article 63-A that disqualified MPAs for a vote that they didn't cast, and accepting that the Justices may have unknowingly made an error in judgement, the Honorable Court decided not to make amends thus bringing the country to where it stands today.
Second, by not entertaining additional questions posed by other members of the bench and focussing instead on a obviously weaker argument put forth by the Election Commission, the Honorable Court lost another opportunity to reverse its earlier misdoing.
Finally, by denying the government's demand for a full-bench, and continuing ahead with a 4-3, 3-2, and then 3-0 verdict, the Honorable Court all but lost the final opportunity for redemption.
What is scheduled to happen in the days and weeks ahead, so far, does not give one confidence that CJ has been able to bridge the divide within the Honorable Court and rule justly with the concurrence of the full power of a united Court.
The future looks quite bleak for Pakistan as division, polarisation, and dysfunction of all actors of the Pakistani state becomes more extreme, Some actor - ideally the Supreme Court - needs to come to the rescue and resolve the matter in a manner that is just and mutually acceptable to all.
Until then the nightmare on Constitution Avenue and the exorcism of the Pakistani state shall be the unfortunate spectacle for the entire world to see.