Institutional Confrontation in Pakistan

The only way out of this confronting situation prevailing among the institutions of the Country is that there should be rule of law and all the institutions should obey the Constitution. This demands maturity from all actors involved in this crisis and the supreme responsibility is that of government, as much depends on its performance.

A smooth relation among the various institutions of a state is a sine qua non for its effective functioning. When institutions act arbitrarily, the end result is chaos and turmoil. Pakistan is facing the same because the relations between judiciary and executive are getting worse day by day. The present rift is continuation of the row that started with the stand taken by the CJ, Iftikhar Mohammad Chaudhary, against the dictatorial regime of Pervez Musharraf and the subsequent sacking of the judges of the higher judiciary when they declined to take oath on PCO. The present regime of the PPP-led coalition government inherited this problem and it had to reinstate these judges in wake of the movement led by the legal community and civil society.  The verdict of Supreme Court on NRO and the subsequent perusal of the case and pushing the government on multiple occasions to take concrete steps to improve good governance set the tone for the growing assertive judiciary and the willy-nilly obeying government.

If we examine these instances, the root-cause seems to be the absence of conventions ‘the unwritten part of the constitution’ which ensure the smooth functioning of the institutions within their respective spheres. Unfortunately, in Pakistan positive conventions could not evolve. Pakistan follows the Parliamentary system of governance which has universally acknowledged conventions. But in Pakistan deviation from the standard principles has always been the norm. One example in this regard is the concept of troika which means that there should be a balance among the offices of the President, the Prime Minister and the Army Chief. The very notion of having such a balance is against the settled conventions of a Parliamentary democracy. Similarly, notions like ‘controlled democracy’, ‘restrained judiciary, and ‘docile Parliament’ are essentially against the spirit of democracy.

A system of trichotomy of power enshrines maintenance of harmony and balance between the three pillars of the State, namely, Legislature, Executive and Judiciary. The idea is to ensure that the state organs perform their respective functions within the stipulated limits and constraints. But unfortunately, we have rarely had such sort of relations existing between these institutions. Largely owing to the internal weaknesses of our political class and their tendency to seek help from outside to legitimize or prolong their rule have rendered their position quite weak.

A glance over the history of institutional confrontations in Pakistan in past two decades shows that the executive has on occasions come into clash with the other two powers – the judiciary, and the army. Basis of this clash has always been an encroachment by the latter two institutions into the executive’s sphere’ though mostly on pretext of maladministration. Traditionally, the top brass of the military played a key role in the making and un-making of political governments. Now the superior judiciary is expanding its domain of power and stepping into what has traditionally been the sphere of the executive or legislature.

We have seen reactions from political forces against judiciary in past in their own style. Governments and Judiciary in Pakistan have had both extremes of relationships. Where we have witnessed connivances of the two institutions for major part of our history, we have also seen conflicting situations.

In 1997, when the Supreme Court took up contempt case against the then Prime Minister Nawaz Sharif, some political workers stormed the court. On March 13, 2007, Chief Justice of Pakistan was manhandled by police and administration under directions from the government. And the most recent incident was the strike in Sind in protest against the verdict against Justice (R) Shah’s appointment as NAB Chairman.

Now coming to the present institutional tussle between the Executive and the Judiciary, we see that although Prime Minister and other members of the coalition government have been saying that there are smooth relations existing among various institutions of the state but summoning of the Prime Minister this month by the apex court in a contempt case betrayed the fact. For a week, nation was kept hostage by the television anchor-persons who had developed an atmosphere as if PM would come out of court handcuffed heading towards jail. Sanity prevailed though when government appointed seasoned lawyer barrister Aetezaz Ahsan as its consul. The hype created by the media began to subside and somehow government became successful in disappointing those pundits who had been prophesying its ouster since its inception. Government itself, though, has been quite generous in providing them with enough substance to base their prophecies on. The only losers in all this grapple of institutions are the common people whose real problems have largely been ignored.

Roots of this most recent episode of institutional clash are embedded in two issues. One is the NRO case which has been a cause of friction between the SCP and the Government. The other one is the issue of an anonymous letter alleged to be written by Hussain Haqqani, the Pakistani Ambassador to U.S. at the instigation of President Zardari, asking for their help against a feared coup by the top military commanders. Termed by the Pakistani media as ‘Memogate’ scandal, it emerged in the aftermath of the killing of Osama Bin Laden which had embarrassed the government and military alike.

NRO has become a popular slogan in opposition politics. Ironically, the ongoing political discourse is focused on one person, although the SC judgment has reopened the cases of 8,041 persons. The popular demand of the opposition that the SC judgment should be implemented is in fact a code phrase for demanding the initiation of court proceedings against President Zardari on the basis of the revived cases. The whole focus has been on the issue of writing a letter to the Swiss authorities to reopen investigations against President Zardari.

Speaking of rule of law, sadly no opposition leader has talked of initiating impeachment proceedings in Parliament against Zardari on the basis of corruption charges. The issue is being raised outside Parliament as there are little hopes of getting success through constitutional channel. Hopes are that the SC would suspend or disqualify him or direct the government to start court proceedings against him. Another hope is that the army top brass would force him to quit. These two issues, coupled with some irresponsible statements by some leaders, have provided an excellent atmosphere for either of these two unconstitutional methods of removing the President. But who cares if the political purpose is being served. This attitude is the main cause of a weakened political executive and ingresses from other institutions as our political leadership doesn’t believe in developing institutional (parliamentary) conventions.

Opposition and the army regard Memogate as a conspiracy against our national security whereas the government takes it as a non-issue. On NRO as well, opposition would demand upholding and implementation of SC decisions.

SC, on the other hand, seems annoyed with the persistent non-compliant attitude of government and has decided to fix those who do not comply with the decisions. Recent summoning of the PM is to be viewed in this background. The court also doesn’t agree to the allegations that executive’s domain is being ingressed by a judicial activism. Instead it takes a stance that as a guardian of the Constitution, the Court is required to ‘preserve, protect and defend” this document.

Another key factor of this scuffle is the media ‘hype. A flamboyant segment of our media seems more interested in a drop scne of this drama. Judicial remarks passed during the proceedings are presented in a sensational manner to build up an intense atmosphere.

The government seems assured that no regime change be possible through a constitutional way. But as far as the history of power change in Pakistan is concerned, the constitutional provisions may not be seen as an assured guarantee of remaining in key political offices.

So far government has avoided taking any stance against judiciary. Whenever any confronting situation arose, the government shied away even from its principled stances. One should hope that sanity would prevail and the government would act sensibly this time.

But as mentioned there are a few examples of hostile reactions to the Court’s decisions from the governments. Already in this case we have witnessed Sind-card being played. This does not present good omens for democracy in Pakistan. Pakistan has been facing a political turmoil for some years now. Our frail economy cannot bear up such confrontations. Although our Prime Minister keeps on denying any conflict between the state institutions, he also demands that no institution should interfere in other’s domain.

Then what is the way out of this confronting situation? One simple argument is that there should be rule of law and all the institutions should obey the Constitution.

This demands maturity from all actors involved in this crisis and the supreme responsibility is that of government as much depends on its performance and it is only the political elite that can deliver in this scenario by implementing the Constitution in its true letter and spirit.

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