The constitutional deadlock between the Prime Minister (PM) and the Chief Justice (CJ) is now only a short step away from an irreparable constitutional breakdown. How have we come to the precipice? Who among the two is more right than wrong? Is there still a way out of this unprecedented political crisis? What might happen in the coming days?
On Wednesday 29 Oct, at 1 am, following a three-hour meeting between the PM and the CJ, mediated by the President and the COAS, government sources leaked news of a “settlement” between the PM and the CJ. It was reported that, in pursuance of the CJ’s order over two months ago, the PM had offered to elevate two judges to the SC immediately and promised to elevate the three others demanded by the CJ “as soon as possible”. There was, however, no official statement to this effect from the government, SC or presidency.
The same day, at 11.30 am, the Attorney-General (CG) and Mr Sharifuddin Pirzada, representing the government in the petitions challenging the 14th constitutional amendment, requested four days in which to conclude their arguments. When the CJ asked the petitioner to comment, both counsels pleaded for a “stay”, arguing that parliament had been called to session and might pass laws curtailing the powers of the CJ or SC, thereby adversely impinging on their case. When the CJ turned to the AG for comment, he did not utter a single word of assurance that parliament would not pass any law or amend the constitution in the interim. The CJ then granted a “stay” to the petitioners and postponed hearings in the case. Within minutes of the decision, however, government sources denounced the CJ for “going back” on the so-called “agreement”. Latter, the PM accused the CJ of acting “unconstitutionally” and criticised the SC for opening the floodgates of “lotaism”. The same evening, several PML(N) stalwarts took their cue from the PM and blasted the CJ in the national assembly, despite being reminded by a member of the opposition that, under article 63(1)(g), they could be disqualified from sitting in parliament for criticising the judiciary.
The CJ hit back on Thursday, October 30th. He ordered the AG to appear before him and explain why the government had not notified the elevation of 5 judges to the SC as demanded over two months ago. When the AG excused himself from attending the summons, the CJ directed the President to issue an immediate notification at the same end. Rumours were rife Thursday evening that the government had requisitioned a session of the Senate for the following (Friday) so that it could pass the 15th amendment to the constitution whereby the CJ would be completely disempowered.
The government’s proposed amendment seeks to objectives: (1) Serious cases involving critical constitutional issues should be heard by the full court. (2) The benches, roster and fixation of all cases before the SC should be regulated by a panel consisting of the CJ and the two senior-most judges. If passed, the amendment would cripple the CJ and throw him at the mercy of the very seven judges who are widely thought to have discredited themselves and the institution of the SC not so long ago when they attempted to strike against him when he was out of the country on Umra. Meanwhile, it is speculated that the government might move a reference against the CJ by advising the President to haul him up for misconduct before the Supreme Judicial Council. If this comes to pass on Friday or Saturday, the constitutional deadlock could lead to a constitutional breakdown.
A constitutional breakdown would occur if any or all of the following situations were to arise in the next few days: (1) If, acting on the orders of the SC, the President’s order to the law ministry to notify the five judges to the SC were not to be obeyed by the government. (2) If the President were to refuse to sign, on one pretext or the other, a reference against the CJ by the government or a constitutional amendment approved by both houses of parliament. (3) If the SC were to strike the amendment down as being “malafide”. The breakdown would, of course, precipitate a dangerous situation if at any time during the crisis the CJ were to ask the armed forces to come to the SC’s protection under clearly defined provisions of the constitution. It would also be precipitated by any SC decision to disqualify the PM or any of his colleagues from sitting in parliament on account of transgressing article 63(1)(g). A constitutional breakdown, it may be stressed, implies a comprehensive breakdown of the established political order. It leads to an abhorrent political vacuum which cannot be sustained.
Can the situation be retrieved even now, on Thursday 30th October? Yes, it can. The SC has ordered the president to notify the appointment of the five judges immediately. If the government acts on the President’s advice and issues the notification promptly, sufficient breathing space can be gained in which both sides can step back from the brink.
One last point needs to be stressed. However, much the tensions may appear to be about the “intransigent” personalities of the PM and the CJ, the issues at stake in this battle between the PM and the CJ are really about the legitimacy and desirability of checks and balances in the democratic system. Nawaz Sharif aims to establish despotic rule. The only obstacle in his path is Justice Sajjad Ali Shah. If Justice Shah is toppled, we will long rue the day we did not spring to his assistance.