Judiciary -government standoff is a Power struggle

This self destructive power struggle must end before it is too late 

 Pakistan’s ruling elite are engaged in a fiery power struggle at the top. It is an ugly and naked power struggle. This power struggle is not about the supremacy of the constitution and parliament on the one hand and for the independence of judiciary on the other hand. This power struggle is not based on ideology, principles and to protect people’s fundamental rights. This struggle is for power, authority, prestige and personal interests. The power struggle is intensifying by every passing day.

The stakes are very high in this battle of dominance. The intensity of the situation can be judged from the fact that 8 member SC bench headed by Chief Justice Umar Ata Bandial practically killed an act of parliament before becoming a law on Thursday. Here I am quoting the relevant part of the SC order which self-explanatory in nature.

"In our view, the facts and circumstances presented here are extraordinary both in import and effect. Prima facie the contentions raised disclose that there is a substantial, immediate and direct interference with the independence of the judiciary in the form of multiple intrusions, in the guise of regulating the practice and procedure of this Court and conferring upon it a jurisdiction that appears not to be permissible under any constitutional provision. Any interference in the functioning of the court, even on the most tentative assessment, would start as soon as the bill becomes an act.

"Accordingly, in our view, an interim measure ought to be put in place, in the nature of an anticipatory injunction. The making of such an injunction, to prevent imminent apprehended danger that is irreparable, is an appropriate remedy, recognised in our jurisprudence and other jurisdictions that follow the same legal principles and laws."

Ruling coalition declared the decision an offshoot of a one-man show, which would go down as a black chapter in the judiciary’s history. They also called this decision as “murder of justice and reputation of the SC”.

The SC order and response of the ruling coalition is clearly indicating that the situation is fast moving to point of no return. Both the CJP and government are trying to undermine each other.

It is clear from this order that CJP and his fellow judges of the 8 member bench are trying to protect the discretionary powers to take suo-moto notice and form benches and to fix cases. This imbalance in the Supreme court needs to be addressed and solved properly. 

The parliament has refused to provide Rs21 billion to the election commission of Pakistan on Thursday. The 3 member SC bench ordered the federal government to provide Rs21 billion to ECP to hold elections in Punjab and KP till April 10. But government decided to defy the SC order. It seems that the current confrontation is heading towards an unpleasant end.

Not one but two power struggles are taking place at the same time. One power struggle is between two pillars of the state-the judiciary and executive, while another power struggle is taking place within the judiciary. The Supreme Court stands divided.

The CJP has practically sidelined his seven brother judges including the senior most judges. The other judges haven’t reacted collectively yet. Their collective response might make the situation even worse. The situation is not only heading towards a head on collision between the parliament/government and section of Supreme Court judges but also between the two factions of SC judges.

Both sides are claiming to uphold the rule of law and supremacy of the constitution. The government is claiming to protect the sovereignty and supremacy of the parliament while CJP led clique of judges are claiming to uphold the constitution and protecting the independence of judiciary. This battle is not just for the supremacy of the constitution or parliament as both sides are claiming. There are other factors behind this open power struggle.

One key factor behind the power struggle that is taking place between the CJP led clique of honourable judges and the government is to encroach the authority of the executive and to gain more space through judicial activism.

This battle is not taking place for the first time. Since the restoration of superior judiciary through a lawyer’s movement, the judiciary continues to encroach the executive authority. Former CJP Iftikhar Chaudhry set the precedent and widely used the suo-moto powers. It was the time when after the ouster of General Musharraf from the power, the establishment under General Ashfaq Parvez Kayani took a step backwards and make necessary adjustments in its position.

                                         

The judiciary jumped in to fill this vacuum. The government and parliament was not allowed to take its authority back. Since then every CJP with couple of exemptions like CJP Tassaduq Hussain Jillani and Anwar Zaheer jamali followed the tradition established by Iftikhar ch. The judiciary in alliance with the establishment foiled the attempts of the parliament to assert itself.

The impression has been created that this battle is to uphold the constitution and independence of judiciary. The Supreme Court is just trying to implement its order to hold the Punjab Assembly elections on May 14. The government is defying the court order and trying to delay the elections.

If the CJP and some his comrades want to up hold the constitution which clearly states that election will be held within 90 days after the dissolution of an assembly then why they are continue to press just for the Punjab elections. Why the CJP is not showing the great interest to implement the relevant article of the constitution in the case of KP assembly. The selective implementation raises questions.

This power struggle is taking place at a critical juncture. The general elections are just few months away. The focus of the political parties and the state institutions should be ensure timely, transparent, fair, impartial and orderly elections in the country. The dialogue among the stakeholders is the only option to end this self-destructive power struggle.

                                       Khalid Bhatti