What started off as a political crisis between the ruling coalition and the opposition led by Imran Khan is turning out to be a constitutional crisis in Pakistan, with the government of Prime Minister Shehbaz Sharif seemed determined to curtail the powers of the Supreme Court Chief Justice even as cracks are widening in the judiciary.
For the past year, the South Asian country, reeling under mounting economic woes, has been on the brink with Mr. Khan, who was forced out of power by a vote of no-confidence in Parliament in April 2022, demanding early national elections. It escalated in January when Mr. Khan’s Pakistan Tehreek-e-Insaf (PTI) party dissolved two provincial assemblies – Punjab and Khyber Pakhtunkhwa (KP). The Constitution says: “A general election to the Assembly shall be held within a period of 90 days after the dissolution.”
Comment | Tampering with the Constitution in Pakistan
The PTI had counted on the dissolution leading to either elections in the two provinces or forcing the coalition government of Mr. Sharif at the Centre to agree to early general elections across the country. But the Centre was not in a hurry to hold provincial elections. The matter reached the Supreme Court after the Chief Justice of Pakistan (CJP), Umar Ata Bandial, took a suo motu notice over the delay in polls. After a lot of back and forth (a nine-member Bench, which initially took up the case was later reconstituted to a five-member Bench), a 3-2 split decision held that elections should be held within 90 days in both provinces.
The government did not accept this decision. Federal Law Minister Azam Nazeer Tarar told The Hindu that the Punjab polls decision was dismissed by 4-3 judges “after two judges recused from the nine-member Bench, but it is unfortunate that the Chief Justice made this case controversial”. Mr. Tarar said the government believes things have not been dealt with in a proper manner. “The matter has actually been manipulated.”
Cracks in the judiciary
After the 3-2 split decision, three judges of the original nine-member Bench (Justices Syed Mansoor Ali Shah, Jamal Khan Mandokhail and Athar Minallah) made some scathing remarks in their detailed orders.
In March, Justices Ali Shah and Mandokhail said they were in agreement with the decisions of Justice Yahya Afridi and Justice Athar Minallah when they questioned the intent of the suo motu and urged the constitution of a full Bench. In essence, the order said the Punjab elections’ suo motu was dismissed 4-3. The detailed ruling added: “We find it essential to underline that in order to strengthen our institution and to ensure public trust and public confidence in our Court, it is high time that we revisit the power of ‘one-man show’ enjoyed by the office of the Chief Justice of Pakistan.”
Earlier this month, Justice Minallah said the “final outcome of the petitions and the suo motu assumption of jurisdiction by a majority of 4 to 3 because this was the understanding in the meeting held in the anteroom on 27 February 2023. It is noted that I had not recused nor had any reason to dissociate myself”. According to him, Pakistan “is on the brink of a political and constitutional crisis”.
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The cracks within the judiciary, according to lawyer Abdul Moiz Jaferii, have led to unprecedented introspection.
The five-member Bench’s decision regarding the Chief Justice’s powers authored by Justice Munib Akhtar and the dissent notes authored by Justices Mansoor Shah and Athar Minallah are all exercises in introspection. “It is tragic for the court’s public perception that these observations had to come through dissenting opinions as a conversation upon reform couldn’t be held within the court itself. It is similarly unfortunate that the government stepped in to legislate regarding Supreme Court practices and procedures where there was a vacuum created by the friction within the court,” said Mr. Jaferii.
Law to curtail CJ’s powers
The controversy did not end there. Many felt that the government moved fast to use the crisis in the top court politically to its advantage
Pakistani vendors talk at Clifton Beach on April 17, 2023 in Karachi, Pakistan. Pakistan’s Supreme Court rejected a decision by the country’s Election Commission to delay elections in two provinces. Elections are scheduled for Punjab province on May 14, but the government indicated it would ignore the decision. | Photo Credit: Getty Images
In a bid to curtail the suo motu powers of the Chief Justice, the National Assembly and the Senate passed the Supreme Court (Practice and Procedure) Bill, 2023, last month, which became law last week. An eight-member Supreme Court Bench took up petitions challenging the Bill, which also deals with Bench formation, even before it became law.
“Parliament has introduced this law because there were voices within the Supreme Court as well the Bar bodies criticising the manner in which Benches are constituted in the SC and powers under Article 184 (3) of the Constitution exercised. Unfortunately, the SC took up a petition challenging a law which had not yet come into effect. That is unprecedented,” Law Minister Tarar told The Hindu.
According to Mr. Jaferii, the lawyer, the fact that the top court reacted by making an eight-member Bench and began to hear a challenge to a Bill even before it became law is an indication of “how far astray from the law we actually find ourselves... It’s all to do with politics and power. And some very powerful looking houses built of cards.”
Erroneous timing
Lawyers question the government’s intention as well. Muneeb Farooq, a lawyer and anchor, thinks it is good legislation in principle but the timing is erroneous. “It looks pretty self-serving.. It would have been welcome in normal times but the timing is not right and the people will always say that this was done hurriedly by the government to avoid itself a disaster in the Supreme Court...”
Agrees senior lawyer Faisal Chaudhry: “There is no doubt that the suo motu powers and formation of Benches need to be regulated but the method, manner and timing opted by the incumbent federal government is erroneous.” Mr. Chaudhry added that it is also unprecedented behaviour of Parliament and executive that are hell bent to curtail powers of the office of CJP.
Mehmal Sarfraz is a journalist based in Lahore
