The conflict between the PPP government and the Supreme Court (SC) seems to be heating up again and displacing headlines of death and destruction wrought by the floods in August. This confrontation has three unprecedented dimensions.
First, the government is dragging its feet over the execution of the orders of the SC in certain cases. This is unprecedented. The SC knocked out the NRO and ordered NAB to reopen all the criminal cases against President Asif Zardari at home and abroad. This has not been done. It directed the government to appoint a new head of the NAB with the approval of the SC but this has not yet been done. In the latest instance, it has ousted the NAB Prosecutor General and given the government 30 days to appoint a new PG. But the ousted PG is attending office and aggressively insisting on his rights until the appointing and sacking authority – President Zardari formally notifies his sacking. The PG’s bravado is doubtless at the behest of the government that has decided not to concede any space to the SC until and unless it is absolutely necessary.
Second, the SC has accepted a number of petitions challenging various aspects of the 18th constitutional amendment passed by an all-parties consensus in both houses of parliament. Indeed, by the looks of it, the SC is gearing up to strike down some clauses as being unconstitutional. Both the all-parties consensus behind the constitutional amendment – which took over nine months to mature in parliamentary committees that earmarked over 100 clauses for change – and the challenge to it in the SC are unprecedented. The SC has never, since the constitution was signed in 1973, overthrown any constitutional amendment by parliament on the ground that parliament is supreme and is empowered to change the constitution lawfully without having to look over its shoulder at the courts whose powers of judicial review are confined to interpreting the laws rather than changing the constitution. The fact that this 18th amendment reflects an unprecedented parliamentary consensus makes the SC’s line of thinking controversial.
Third, the SC’s majority view against parliamentary oversight of appointments to the high courts and supreme court, as laid down in the 18th amendment, is unprecedented in the annuls of democratic constitutions of the nations of the world. Nowhere in the world do judges appoint themselves without any reference at all to a democratically elected executive and also remain unaccountable to parliament. Even in India, whose example is always quoted in support of the prevailing mood among the judges of Pakistan, where a so-called self-accountable collegiate system exists to sanction all judicial appointments, the judges are, in the final analysis, open to impeachment and sacking by parliament. But in Pakistan, it appears that the new judiciary is inclined to believe that it, rather than parliament, is supreme!
Therefore, if the “necessary conditions” for confrontation and gridlock exist, what will it take to create the “sufficient conditions” for a military intervention?
Mr Altaf Hussain, the MQM chief, has indicated one route. He says that “patriotic generals” should carry out a martial law “type” of “revolution”. What is this new beast that is and is not martial law at the same time? To be sure, past SCs in Pakistan have argued that a “successful coup” is akin to a “revolution” that creates its own sources of legitimacy. But the current SC led by CJ Iftikhar Mohammad Chaudhry buried the notorious “law of necessity” on which past coups and constitutional deviations and violations were pegged, in the famous judgment of July 31st 2009. So how is the same SC likely to respond to any military general who puts a gun to the head of the current parliament or government and shows it the door because of some state necessity or the other?
Here’s something to think about. In the past the army seized power on the grounds that the system had broken down or been irrevocably derailed. It made no bones about the fact that it had carried out a coup d’etat. Therefore it sought the help of a newly sworn-in judiciary under a Provisional Constitutional Order to clutch at the “law of necessity” to make its coup lawful. But in the future, why can’t the army intervene on the orders of the SC and send the government packing on the grounds that the army is acting in aid of the SC to protect and preserve the constitution rather than to overthrow it and seize power? Under such circumstances, there would be no constitutional deviation or violation, nor any need of a PCO or any “law of necessity” to legitimize any unlawful act because none such would have been committed in the eyes of the SC.
Thus, given the current scenario, anything is possible in Pakistan. But is it probable? And will it work? Notwithstanding personal ambitions or institutional imperatives, any unholy alliance between the organs of the state like the army and judiciary against the mainstream political parties that reflect the imperfect will of the people, is likely to come a cropper sooner than later, with dire consequences for state and society in Pakistan.