On a collision course

PREDICTABLY, the three-member Supreme Court bench headed by the chief justice ruled on Tuesday that the decision by the Election Commission of Pakistan to postpone elections to the Punjab Assembly was unconstitutional. The court announced May 14 as the new polling date.

It ordered the government to provide the required funds to the ECP and ensure security for the exercise. These two issues had been cited by the ECP as the reason for its decision to postpone elections.

Last month, the Supreme Court had ordered the ECP to hold elections to the KP and Punjab assemblies, dissolved earlier this year, within the stipulated time frame of 90 days. The voting date for the Punjab Assembly was initially supposed to be April 30 but was abruptly changed to Oct 8.

It was clear that the ruling alliance was not ready to hold elections. Lack of funds and the worsening security situation were cited as the reason for the delay. Now the government is bound to comply with the court order. But the game is certainly not over as the ruling coalition has rejected the order.

The judgement has changed the country’s political landscape. While it has come as a huge setback to the ruling coalition, the opposition PTI is celebrating the decision as a vindication of its position.

In a hard-hitting statement, the federal government has challenged the validity of the ruling by the three-member bench, and has reiterated its demand that the case should have been heard by the full court. The federal law minister has warned that the verdict would aggravate the current political crisis.

Non-compliance with the court’s orders will cause matters to spin out of everyone’s control.

The ruling coalition is on a defiant path. It has made it clear that it won’t comply with the court’s order that it describes as ‘minority’ and ‘partisan’. Some ministers have not even ruled out the possibility of declaring a state of emergency.

But such a move would be seen as a virtual declaration of war against the top court, and pit the two institutions of state against each other, with disastrous consequences. Going against the order would intensify the clash of institutions and deepen the constitutional crisis, bringing the country closer to a systemic collapse.

There is a fear that the crisis could also suck the security establishment more deeply into the political fray. Notwithstanding its claims of neutrality, the military is not totally out of the game.

There are strong indications that the military leadership is not in favour of early or scattered elections, with the defence ministry asserting that the armed forces would not be available for poll security duties because of the security situation.

Unlike in the recent past, when the judiciary was seen to go along with the security establishment, its latest position on polls in Punjab and KP indicates a divergence of views within. Among other factors, the fear of the PTI sweeping the polls has brought the establishment closer to the government’s position.

But non-compliance and its consequences will cause matters to completely spin out of everyone’s control. And a move to get the army directly involved in emergency rule could spell disaster for both the country and its institutions.

With the political process hitting a dead end, the battleground has long been shifted to the highest court. Caught in the middle of a reckless power game that has divided the country, it was hardly possible for the Supreme Court to stay clear of controversy when it took up the petition against the postponement of elections in Punjab and KP.

The court was already seen as divided on the issue of suo motu action taken earlier by the chief justice on setting an election date for the two dissolved assemblies. But the composition of the bench that was hearing the petition apparently intensified the war within.

Split down the middle, the apex court is now fighting a desperate battle to maintain its sanctity. The authority of the chief justice is seen as being challenged by the ruling coalition and some of his fellow judges.

In fact, many among the 15 members of the apex court appear to have reservations regarding the chief justice’s powers, demanding that the absolute authority of his position to constitute benches be curtailed. The conflict has taken a more ominous turn as the disagreements have come out into the open.

Observers have said that the situation is reminiscent of the judges’ revolt against then chief justice Sajjad Ali Shah in 1997, that ultimately led to the ouster of the latter. While one cannot predict a similar fate for the current chief justice, many opine that the split has weakened his position in the run-up to his retirement in a few months. Unfortunately, the division has rendered the court’s ruling controversial. It is a huge blow to the rule of law.

The view that the concentration of powers in the office of the chief justice raises questions about the impartiality of the judicial system — and underscores the need for reform — is not without substance. But the move to change the rules through an act of parliament has reinforced suspicions about the government trying to exploit the judicial divide for its own political ends. Many legal experts maintain that the change in rules should have been left to the Supreme Court itself.

Meanwhile, the clash of institutions and ongoing frictions have eroded the writ of the state. With the country in the midst of an economic meltdown and with the democratic political process on very shaky ground, any deviation from the Constitution will further weaken an already fragile polity.

There is still time for the rival political forces to step back from their hard-line positions and come to the negotiating table — in an atmosphere of confrontation, it will not be possible to hold free and fair elections. By undermining the authority of the Supreme Court, the politicians will only strengthen the forces of Bonapartism.

The writer is an author and journalist.

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