Courts, crises, controversies

One of the most significant features of the 18th Amendment was the withdrawal of the power to dissolve the National Assembly from the president.

In 1985, this discretionary authority was the first article inserted in the constitution by the despot Ziaul Haq. Over subsequent decades, it proved to be a convenient tool to dismiss ‘errant’ prime ministers. Inadvertently, what the landmark 18th Amendment also achieved was an enhancement in the Supreme Court’s role, especially its chief justice, in political disputes.

For an institution designed to be the ultimate arbitrator in resolving crises, the SC has invariably found itself at the centre of plenty in recent years. From the heyday of the Lawyers Movement – which led many a gullible person to chase rainbows well before the PTI was parachuted on to the scene and assigned the same task – to the J Bandial (half) court, a laundry list of controversies has enveloped the land’s highest judicial chambers. More often than not, its master of the roster has played a central role.

The last six years in particular have witnessed some bewildering decisions. From the dismissal and lifetime disqualification of an elected prime minister on the flimsiest of reasons to the rewriting of the constitution in the CM Punjab election case, the SC’s imaginative interpretation of the law has been a key factor in changing the political landscape and bringing the country to its current muddled state.

The decision barring dissenting legislators’ votes from being counted in the CM Punjab election last summer set in motion a chain of events, petitions, and judicial orders that heightened the state of uncertainty. In its detailed order, the SC effectively admitted to rewriting the constitution, but justified it by claiming it was based on a deeper understanding of the constitution’s ‘spirit’. Such claims ring hollow when a bench comprising the same judges insisted upon adherence to the ‘letter’ of the constitution when deciding upon the subsequent Punjab elections case.

Through most of Pakistan’s history, the SC has been viewed as a partisan arbiter by legal and political stakeholders. Since 2017 though, two consistent trends have emerged. The first is its perceived tendency to favour the PTI in the vast majority of politically and constitutionally important matters. One notable exception to this trend stands out. And it appears that to make amends for that fateful decision in April 2022, the former ruling party, its chairman in particular, has been indulged with decisions that give the impression that they are more about ensuring a tilt towards the PTI.

In a 3-2 majority ruling in May 2022, an SC bench declared that votes against the party line must be discarded. This ruling turned out to be a precursor to the above-mentioned Punjab CM election ruling later in July. Also in May 2022, an SC bench directed authorities to allow, prepare for, and facilitate the PTI’s march to Islamabad in a specified public ground. Having become accustomed to being pampered by state institutions over the years, the party failed to adhere to the court’s directions. The bench, with one honourable exception, has to-date refused to hold any contempt of court hearings, let alone issue any non-compliance order.

In February 2023, suo-motu petitions for setting an election date for Punjab were taken up in a hasty manner, with a two-member bench bringing up the issue during a hearing involving the CCPO for Lahore. Curiously, the same swiftness was not witnessed when it came to the issue of elections in Khyber Pakhtunkhwa.

The second, and co-related trend, is the proclivity to include like-minded judges on cases involving the PDM parties or the PTI. While the Iftikhar Chaudhry court gained notoriety for its unanimous verdicts, benches under the three most recent CJs have been conspicuous as much by the names that are included on them as they are by those excluded. Benches fixed under CJ Gulzar became so notorious for their lack of transparency that it prompted a senior lawyer like Hamid Khan to refer to this practice as ‘The Gulzar Doctrine’.

Such perceived partiality has now reached the point where even casual analysts can predict court decisions with a cursory glance at the composed benches. This is a damning indictment of the court’s performance. It is also deeply disappointing because the public is being denied opportunities to be heard by some highly distinguished and learned judges due to this strategic formation of benches.

Over the last two years, the same three or four judges have been part of almost every politically sensitive case. Despite the ruling parties’ protestations as well as requests from the legal fraternity, the pleas to form a full bench have gone unheeded. Events have reached the stage where even judges on the SC feel compelled to describe the functioning of their institution as an 'imperial court’.

This is in stark contrast to a bar placed on the senior puisne judge from hearing any case involving the PTI chairman, without the latter even making any such request. It is difficult to find more blatant examples of dual standards than these. In contrast, the continued inclusion of a judge on politically sensitive cases despite numerous petitions against his alleged impropriety is telling in their own regard. Efforts to enact a law intended to introduce greater transparency in bench formation and enhance judges’ independence have also been stymied with the bill being suspended after a slew of hasty hearings.

Politically expedient decisions that undermine parliament, and the recent deep divisions among senior-most judges will lead to the SC adding to its unenviable legacy. Allegations of partisanship have already rendered the legitimacy of many decisions questionable, and left the SC’s reputation in free-fall. It will take a long time for the court’s honour to be restored, and the stain of ‘politicians in robes’ to be erased from the judicial lexicon.

The writer works as a development practitioner for a local consultancy.

He tweets @ShahrukhNR