Hanging by a hair’s thread

As these lines are being written, all eyes are once more fixed on the Supreme Court (SC) hearing on the issue of delaying the Punjab and Khyber Pakhtunkhwa (KP) provincial elections beyond the constitutional 90-day limit till October 8, 2023 as decided by the Election Commission of Pakistan (ECP), citing security and financing problems.

The SC appears deeply divided as a result of the perceived manner of forming, breaking and reconstituting benches hearing sensitive cases such as the one above.

The Pakistan Democratic Movement (PDM) government has responded to alleged bias and partisanship in the formation of benches by Chief Justice of Pakistan (CJP) Umar Ata Bandial by getting a bill passed by parliament (both houses) restricting the sole jurisdiction of the CJP in the formation of benches, particularly in suo motu notices.

Instead, the bill lays down new rules requiring the CJP to constitute benches in consultation with the two most senior judges of the SC.

The SC has seldom betrayed the kind of rift in its ranks witnessed today, despite the superior judiciary’s chequered track record in our history, a phenomenon that may make even the new rules difficult to implement.

The bill also has introduced an unprecedented clause allowing appeals against suo motu judgements under matters within the purview of Article 184(3) of the Constitution, with retrospective effect.

Observers are wont to ascribe this innovation to the government’s desire to appeal against Nawaz Sharif’s disqualification and jail punishment, as well as the desire to review the SC’s interpretation of Article 63 of the Constitution on floor crossing MNAs not being allowed to vote in a no-confidence motion.

It bears reiterating that this situation is the cumulative tipping point of the judicialisation of politics, which has had the consequence of politicising the judiciary (further?). One cannot predict the outcome of the April 3, 2023 SC hearing at this point.

The government has criticised the fitful ‘shrinking’ of the bench hearing the case to three judges instead of the original nine.

The original nine-member bench went through wrenching twists and turns because of some judges’ recusal and dissenting notes feeding into the unending debate whether the SC’s order upholding the 90-day election limit and allowing the President to announce the election dates was passed by a 3-2 majority or failed to pass by a 4-3 majority.

The CJP has so far refused to countenance the government’s demand, given this anomalous outcome, for a full court to hear the case to iron out the differences between judges, or allow dissenting judgements to see the clear light of day.

The serious crisis thrown up by these happenings in the apex court reflects an incremental institutional breakdown. The reasons are not hard to seek.

When Imran Khan fell out with his facilitators the military establishment in 2021, the vote of no-confidence brought against him unseated his government and replaced it by the (then) opposition’s PDM coalition government headed by Prime Minister (PM) Shahbaz Sharif.

According to media reports, Nawaz Sharif from exile in London advised against the no-confidence move, perhaps because he of all the PDM leaders understood the negative political fallout of inheriting Imran Khan’s mismanagement of the economy, in which borrowing 76 percent of all the country’s previous loans since Independence was clearly going to impact Pakistan’s current account and balance of payments deficits.

Also, Nawaz Sharif’s reasoning was that Imran Khan and his Pakistan Tehreek-i-Insaaf (PTI) government should be left in place to complete his full term in order to let him further fall flat on its face in the presence of open conflict with the military establishment.

However, Asif Ali Zardari’s anxiety to get the noose of the cases against him off his neck and perhaps the ambition of Shahbaz Sharif (in his brother’s absence) to avail what may be his only chance at the premiership prevailed over Nawaz Sharif’s astute political insight.

The result has been the government’s steady and incremental loss of political capital because of the dire state of the economy, back-breaking inflation and increasing unemployment stemming from factory closures because of lack of dollars to open Letters of Credit (LCs) for necessary imports of plant, machinery, parts for assembly and raw materials.

Imran Khan has rallied his troops on the street and in the media (mainstream and social) and his narrative is giving the government a run for its money.

That is what explains the PTI’s decision to dissolve the Punjab and KP Assemblies where it was in power, calculating that its political momentum would help it secure electoral victories in both provinces as the curtain raiser to victory in the subsequent general elections.

Whatever the outcome of the case in the SC today, the floundering PDM government’s only hope of reversing its flagging fortunes is to seal the IMF deal as soon as possible, opening the door to (increasingly reluctant) other international and bilateral lenders.

Between now and the October 2023 general elections, if some relief on the economic front becomes available to the government, it hopes its chances in the electoral contest would improve. However, the jury is still out since there is still many a slip between the cup and the lip.

Copyright Business Recorder, 2023