On April 9, 2022, when the PTI was delaying a vote on the no-trust move against then-Prime Minister Imran Khan despite a Supreme Court judgment given two days earlier under a suo motu notice, there were reports that prison vans had been parked near PM House. Rumors spread quickly that either the government implements the SC judgment or the country heads for martial law. A deadlock between two pillars of state, namely the executive and judiciary, was to ultimately lead to a non-constitutional intervention.
The PTI blinked and Imran Khan was removed by a no-trust vote.
Almost a year later, Pakistan has come full circle. The Supreme Court is hearing a case that originally started with a suo motu notice and could potentially hold the executive, that is Prime Minister Shehbaz Sharif or his government, in contempt. Chief Justice Umar Ata Bandial refuses to stop the hearing on the PTI petition against election delay despite two judges’ recusal and the government’s plea to constitute a full court.
If the Supreme Court presses for elections on April 30 and the executive drags its feet the way the Imran Khan government did a year ago, we will be exactly back to April 9.
This is not the first time in Pakistan’s history that the executive and judiciary disagreed on who should be calling the shots. Under article 190 of the Constitution “all executive and judicial authorities throughout Pakistan” are required to “act in aid of the Supreme Court.” But in practice institutions have made their own decisions in the past.
History tells us that depending on the quality of the relationship between the government and the Establishment, institutions have either intervened in favour of the Supreme Court — and whenever this happened prime ministers had to yield — or acted as mediators. But mediation worked only when the apex court gave way. If there was not enough time for behind-the-scene involvement or mediation, an open interruption came in the form of the military taking over and suspending the constitution. Non-complaint Judges were sent packing.
Constitution has to be suspended — or held in abeyance as the dictators would like to call it — because it does not provide for military rule.
The constitution also does not offer a remedy to a government refusing to implement an SC judgment. The best a government can do is to delay the execution of court orders for as long as possible. This is what the PPP government did between 2010 and 2012 when the apex court ordered then-Prime Minister Yousaf Raza Gilani to write a letter to Swiss authorities against President Asif Ali Zardari over his alleged corruption.
Gilani was reluctant to write the letter because he believed Zardari being the president of the country enjoyed constitutional impunity and writing a letter against a sitting president was against the law. The SC judges saw it otherwise, of course.
They issued the order to write the letter in 2009 but Gilani refused to comply. He was eventually charged with contempt of court in February 2012 and disqualified from holding any public office in June 2012 for the next five years.
Gilani bought two years for his party at the expense of his five years out of parliament. In the current case, the PMLN-led government needs to buy only five and a half months, until September 17 when Justice Faez Isa takes over as CJP.
So, the government may continue to drag its feet on holding elections, particularly if it does not fear intervention in favour of the Supreme Court.
But will the Supreme Court allow that to happen? The top court may pass a drastic order, jeopardizing the legitimacy of the government. Such a move may precipitate a crisis ultimately requiring an intervention from the institution.
The PTI, meanwhile, plans to take to the streets to show support for the Supreme Court. There may be a law and order situation.
We can’t rule out the possibility that an intervention to control the law and order and to restore normalcy becomes inevitable. But it will be a tough choice. The toughest anyone has ever faced in Pakistan.
It has both domestic and international repercussions.
Pakistan faces a severe economic crisis and is already in dire need of international support, especially in the form of foreign exchange.
A military rule would close all the windows and leave the country worse off. Western nations may impose financial sanctions blocking Pakistan’s exports. Dollar inflows will dry.
The government may not survive the economic meltdown.
On the domestic front, anyone imposing martial law will find himself in a blind alley because after the 18th constitutional amendment, no court can validate such a move.
In the past, military rulers suspended the constitution and then had their actions validated by the courts. Thus, they avoided the charge and punishment for high treason under Article 6 of the Constitution. However, clause 2A inserted into Article 6 through the 18th amendment says “an act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and a High Court.”
This, coupled with the danger of international sanctions, diminishes the possibility of an open martial law or military rule where judges could be muzzled or sent packing.
So, Pakistan may not be heading for martial law but it is hurtling toward a constitutional crisis.
If the Supreme Court issues directives but no one is ready to implement them, there will be chaos and a breakdown.
PTI is already saying that its workers were subjected to state oppression. With no one listening to courts, life may become difficult for many even if it warranted international censure, short of sanctions.
On the other hand, the government will find it extremely difficult to maneuver out of legal and constitutional quagmire given the fact that President Arif Alvi is from the PTI.
For the next five months, how things unfold largely depends on one person: Chief Justice Umar Ata Bandial, who seems to have taken a no-holds-barred position.
