The American constitution begins with the words “We the people of these United States.” The most beautiful words here are “We the People” – it is not “we the elite,” “we the establishment” or “we the property owners.” The entire document is for the common people of the newly established republic. The constitution is sacrosanct: it cannot be tampered with by anybody. Today in Pakistan, we witness the sorry spectacle of a huge clash of state institutions, and it appears that the country is fast spiralling towards a constitutional breakdown, because there seems to be no respite from the clash between our national institutions.
The government appears to be at loggerheads with the Supreme Court and has categorically denied to implement the orders of the apex court. The widening gulf between the government and the highest court of the land could result in a very unfortunate and dangerous impasse. The all-powerful security establishment, too, seems to be helpless in resolving the confrontation between two powerful institutions of the executive and the judiciary – and so the final result of this confrontation cannot be predicted. But one may be sure that it will have negative effects on the overall political, social and economic conditions of the country.
The actions of the CJP have been described by some as undemocratic and the creation of a one-man show in the court. He is due to retire in a month from now, and his role is being seen as divisive
What precipitated the ugly crisis appears to be the decision of the ruling coalition and the Election Commission to defy the 12th-July court ruling that the PTI be given their share of the reserved seats for minorities and women. Simmering tensions within the ranks of the top judiciary have also become public knowledge because of the tussle between the retiring chief justice (CJP) and the seniormost judge who is likely the next chief justice. The ruling coalition probably is hoping that the present CJP will rule in their favour and the President has restored the powers of the CJP by his latest ordinance. On the other hand the detailed majority judgment dictated by eight judges of the Supreme Court is a scathing indictment of the Chief Election Commissioner and the Election Commission of Pakistan. Immediately after promulgation of the Presidential Ordinance, the CJP added fuel to the raging fires of judicial conflict when he restructured the Practice and Procedures Committee by removing Justice Munib Akhtar, who was among the majority judges in the reserved seats ruling. The seniormost judge, Justice Mansoor Ali Shah, has refused to be part of the committee and has expressed doubts even about the legality of the Presidential Ordinance. All gloves are off and the top judiciary appears to have become a laughing stock at home and abroad.
The actions of the CJP have been described by some as undemocratic and the creation of a one-man show in the court. He is due to retire in a month from now, and his role is being seen as divisive. Moreover, critics have accused this CJP of being unwilling to defend the sanctity of the apex court. Justice Mansoor Ali Shah has called for a full court review of the ordinance. The ongoing tussle between the government and the judiciary is a reckless game that has the potential to derail democracy in the country.
Pakistan has a sad and sordid constitutional history. It took us nine years to come up with the first constitution in 1956, which was abrogated by the Ayub Khan martial law in 1958. Ayub Khan gave us his handcrafted constitution of 1962, and this, too, was abrogated by General Yahya Khan in 1969. It was only during the rule of ZA Bhutto that the constitution of 1973 was unanimously approved by the National Assembly and promulgated on the 14th of August 1973. This is a people’s document that must reign supreme. It creates a system of checks and balances between the judiciary, executive and legislature. It is a holy document that must never be allowed to be tampered with, merely to accommodate the wishes of one person or a few. If judicial independence is undermined and replaced by judicial obedience, the entire edifice of the country could come tumbling down.
The 1973 constitution is the defender of our fundamental rights and even after 25 amendments it can still be seen as a guarantee of judicial independence. Fundamental rights and an independent judiciary complement each other, and a judiciary that is not independent cannot enforce or protect fundamental rights. It must also not be forgotten that implementation of the court orders is a fundamental duty of all state institutions – that is, the legislature and the executive. During the last 76 years no government has ever defied so blatantly the orders of the court, except probably during martial law regimes.
The current government, however, has flagrantly and brazenly defied the orders of the Supreme Court, such as the judgment which states clearly that a political party cannot be denied its right to contest elections and be recognised as a political party. 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. 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 verdict.
As seniormost judge of the Supreme Court, Justice Mansoor Ali Shah wrote the detailed judgment in the minorities’ and women’s seats case. He very gravely issued a warning that the court order is binding on all concerned and noncompliance could result in serious consequences.
The present crisis is a test of the top judiciary if it can defend its constitutional authority and maintain the rule of law. The Supreme Court has deep divisions within itself and it is yet to be seen if it can defend itself from the onslaught of various forces. The danger is that this political and judicial crisis could result in a total collapse of the system.