"The universe required correction."
– Thanos, ‘Avengers’ film
There is a deep rumble across the horizon.
Ask Khawaja Asif. He is the defence minister but puts up little defence when referring to the possibility of the constitutional order breaking down.
Or ask Faisal Vawda. He is the jilted minister from the Pakistan Tehreek-e-Insaf (PTI) cabinet, but he is clear that the government will not implement the Supreme Court order of handing over reserved seats of the National Assembly to the PTI.
In the great order of things, order is under a mighty strain. There is nothing ad hoc about the rising menace of terrorism, or of the resistance against another military operation, or in fact, about the intensifying political and institutional conflict flaring up in courtrooms, boardrooms, briefing rooms and even newsrooms. The state of the union is anything but edifying.
In fact, it is downright mortifying. Concerns about constitutional order and law and order are rising by the day. In both cases, the strategy – as is evident so far – is to keep upping the ante till something gives. Or snaps. It's a train wreck in slow motion, under the full glare of cameras and smartphones. Something has indeed gotta give. But what? And how?
The answer may depend on how all of you judge the situation.
The act has curbed the discretionary powers of the chief justice to form benches and take suo moto notice of any issue. These two powers enabled previous chief justices to influence cases and outcomes in ways that the present CJ cannot
The situation: Judges have zero intention of bowing to pressure; the establishment has zero intention of softening towards perceived and real adversaries; and Imran Khan has zero intention of displaying any flexibility. Things are ripening for a meltdown.
Let's break it down.
The Supreme Court's dynamics tell their own story. In the reserved seats case, eight honourable judges formed the majority against five others, including Chief Justice Qazi Faez Isa. Justice Mansoor Ali Shah, who is set to become the next CJ in October this year, led the majority in what can only be described as an optics-laden division of opinion on the bench. Justice Musarrat Hilali was not on the bench due to medical treatment. Three additional judges joined the Supreme Court after the hearing had started, so they were not on the 'full bench'. With the addition of these three judges, Justice Aqeel Abbasi, Justice Shahid Bilal Hassan and Justice Malik Shahzad, the court is up to its full strength of seventeen. The addition of two ad hoc judges, whom the Judicial Commission has approved, will bring the total number of judges on the Supreme Court to nineteen.
The Supreme Court Practice and Procedure Act 2023 has, however, added a complicating mix to the court's dynamics. The act has curbed the discretionary powers of the chief justice to form benches and take suo moto notice of any issue. These two powers enabled previous chief justices to influence cases and outcomes in ways that the present CJ cannot. Now, these two powers have been devolved to a committee comprising the CJ and the next two senior-most judges.
This matters in the present context. On Saturday, July 20, this committee met to decide upon the PML-N's review petition against the SC reserve seats decision. The CJ argued the review should be heard now and not after the court's summer break. He was, however, overruled by the other two members, Justice Mansoor Ali Shah and Justice Munib Akhtar. They argued that the review should take place after the court holidays and once the detailed judgement had been released.
This is the second time that the CJ has found himself in a minority on a matter of tremendous political significance. These fresh court dynamics are indicative of what may lie in the weeks and months ahead.
Many people who observe the courts very closely and who have access to deep sources of information believe the mood of the court has hardened since the judges of the Islamabad High Court wrote the now famous letter demanding an institutional response to pressures being exerted on them. There appears to have developed a quiet consensus within the superior judiciary that pressure tactics to influence their judgements have crossed not one but many red lines. It is a consensus, say Red Zone insiders, which is based not on partisan lines – pro-this or anti-that – but on grounds of institutional preservation.
If the judiciary decides to tighten the leash of the law and enforce its letter and spirit, the executive can find its space and reach shrinking in a rather disconcerting manner
What shape or form could this consensus take, and how may it manifest itself in the judiciary's behaviour? The answer lies less in judicial sparring per se, and more in a resolve to deliver judgements shorn of all pressure or influence. In the present context, this takes on a deeply consequential meaning.
The executive in today's Pakistan is being, well, what the executive has always been – a bulldozer thinly tethered by law. When the judiciary takes a lenient view of such untethering – which it has so often done in the past – the bulldozer runs amuck. But if the judiciary decides to tighten the leash of the law and enforce its letter and spirit, the executive can find its space and reach shrinking in a rather disconcerting manner. The judiciary has vast powers, and the law of the land is a steel net that the judges can, if they so want, cast over all those who habitually stretch the law to their advantage.
Imagine if this steel net were to be cast over two specific issues: first, cases against Imran Khan; second, tribunals formed to decide election complaints.
If this were to happen, there is a risk of things going off-script. De jure confronting de facto will make sparks fly. It is still too early to predict which way the legal course will go on these issues, but projecting outcomes if such were indeed the case, would not be too difficult.
It will not be difficult because the other side has also dug in its heels. Recent anecdotal evidence suggests the mood is equally hard on the establishment's side. With the government fully – and willingly – on board, the executive's vast powers are also at play. For now, it is a war being waged within the constitutional arena between combatants armed with extensive and expansive powers.
It's almost a climactic scene from the Marvel universe.
So, is the endgame of these infinity wars upon us? The deep rumble is getting louder by the moment, but the fear of a wide conflagration burning the house down could inject restraint. This may be more of a hope than a plan, but at this stage, even empty hope is better than the alternative.
"You can't be a friendly neighbourhood Spider-Man if there's no neighbourhood." – Avengers film