Judiciary parliament Showdown in Pakistan

Pakistan has been afflicted with numerous crises since its inception, and it would not be an overstatement to suggest that the country has been in a perpetual state of crisis. Whether it was the constitutional crisis that ensued prior to the enactment of its first constitution, or the democratic crisis that reared its head during every election or dissolution of assemblies, Pakistan has been embroiled in crises of various kinds. More recently, the nation has experienced a novel form of judicial crisis which bears semblance to the one that unfolded during the Musharraf regime, pitting the then Chief Justice Iftikhar Chaudhary against General Pervez Musharraf, ultimately leading to the latter's resignation from the incumbent office. Currently the judicial conflict in Pakistan revolves around a dispute between two incumbents: Prime minister Shahbaz Sharif and Chief Justice of the apex court Umar Ata Bandial.

The recent crisis ensued following the announcement by the Election Commission of Pakistan on March 22^nd that it would be unable to hold elections in the provincial assemblies of Punjab and Khyber Pakhtunkhwa. This was attributed to the dire economic situation in the country and a paucity of funds. In response, the Pakistan Tehreek-e-Insaaf filed a petition in the Lahore High Court contesting the decision of the ECP. During the course of the proceedings, the Chief Justice of Pakistan, Umar Ata Bandial, took Suo moto notice of the case and invoked Article 184(3) of the Constitution, thereby transferring the case to the apex court for adjudication. The Chief Justice of Pakistan constituted a seven-member bench to preside over the case at hand, which subsequently reduced to three members. The bench concluded that the Election Commission of Pakistan (ECP) had a mandatory duty to conduct elections within 90 days following the dissolution of the assemblies, irrespective of any other extenuating circumstances. However, Justice Qazi Faez Isa established a distinct three-member bench, which invalidated the invocation of Article 184(3) by the Chief Justice to adjudicate the case, deeming it unconstitutional, and called for a full court to hear the matter. Meanwhile, while these legal proceedings were underway, the ECP declared that elections would take place in October, notwithstanding the Chief Justice's decree. The Chief Justice, however, remained steadfast and ultimately issued a final verdict directing the incumbent government to hold the elections on May 14th. Despite this, the verdict was met with strong opposition from the parliament, which likened it to a judicial murder akin to the assassination of Zulfiqar Bhutto.

Apparently, a division has emerged within the judiciary, akin to political polarization that has engulfed the institution. Out of the fifteen justices comprising the apex court, some have demonstrated a pro-PTI stance, while others appear to be pro-PML(N), especially since the verdict favored the former and went against the latter. This has the potential to tarnish the judiciary's reputation for impartiality. Ideally, the judiciary is expected to remain independent of political influence and to make unbiased decisions. Nevertheless, there is a degree of merit in the decision taken by the CJ. Admittedly, the case was already being heard at Lahore High Court, but the CJ had to intervene via Suo moto since the proceedings were dragging on. Furthermore, the CJ constituted a larger bench of seven members instead of just three, which the judges had refused to hear, arguing that the case should first be heard at the High Court and only appealed to the apex court thereafter. However, the Chief Justice acted within his discretion by continuing with the three-member panel, as a larger bench or full-court hearing could still have been subject to abstentions by the judges. If that had happened and the panel had decided not to hold the elections, it would have amounted to a grave constitutional violation. While many may perceive the CJ to be biased, I believe that he is the guardian of the constitution.

The ongoing crisis persists as the stalemate between two incumbent offices continues. Prime Minister Shahbaz Sharif and his cabinet are resolute in their decision not to conduct elections under any circumstances, as they view the decision as partial and the case not heard by a full court. In the event that the federal government fails to hold elections within a reasonable time frame, Shahbaz Sharif may face charges under Article 6 for contempt of court and could face a lifelong disqualification. Meanwhile, the parliament has passed the "Supreme Court Practice and Procedure Bill 2023" with the objective of limiting the power of the Chief Justice, particularly with respect to Suo Moto notices. However, a petition has been filed challenging the legality of the bill, asserting that judicial independence is a fundamental principle enshrined in the constitution, and that the proposed bill seeks to undermine this independence. The outcome of this crisis remains to be seen.

The question at hand pertains to the legality of Suo Moto. Justice Qazi Faez Isa is a respected and reputable judge; however, had he not intervened by constituting a separate bench and denouncing the invocation of Article 184(3) as unconstitutional, the current crisis and division among the apex justices would not have emerged. Nonetheless, Pakistan is a country where even the most influential individuals can be coerced into performing extraordinary actions by those with a slightly greater degree of power. Currently, Imran Khan's popularity is at its zenith, and in such a scenario, if elections are conducted, there is little that can prevent his party from whitewashing the PDM nexus, particularly the PML(N). Irrespective of whether the dissolution of the assemblies was due to personal whim or other factors, a predicament emerged, and the assemblies were obligated to be re-elected within 90 days, as clearly stated in the constitution. Amidst all these developments, it is unlikely that Justice Faez Isa's intervention was a coincidence. Some invisible force is either prodding or compelling him to challenge the CJ, and the same may be the case with other judges. Nevertheless, Justice Qazi Isa may not be aware that aiding parliamentarians in passing a bill that regulates the power of the Chief Justice could backfire on him in the future. If he becomes the Chief Justice and seeks to take action against any wrongdoing by parliamentarians, his hands would be tied as, it is uncertain whether the senior most judges, excluding him, are not under the influence of the invisible forces.

In the midst of this triangular conundrum between the judiciary and executive, if the Supreme Court prevails and the federal government acquiesces to conduct the election, it would be a felicitous outcome for all parties except the establishment, who seek to subvert the democratic principles of the nation. The machinations of the establishment entail sowing discord between the two pivotal branches of government in order to maintain their covert dominion over the country. Therefore, the federal government and the ECP must fulfill their constitutional duties as directed by the Supreme Court, lest this crisis degenerates with each passing day. Any failure to comply by the federal government would solely benefit the establishment, leading to potential disqualification of PM Shahbaz Sharif and a diminution of the judiciary's prestige.