The shoe is suddenly on the other foot. No one saw the change happening, like in the dramatic scene in 'Miss Saigon' musical when with the help of extraordinary choreography, the audience was suddenly looking into the US embassy from outside the gates, instead of out from the inside.
In the midst of yet another brazen strike on the Pakistan Democratic Movement PDM) government by the superior judiciary, there came a flurry of audio leaks revealing the design stages of an offensive being planned between the PTI, Ch Pervez Ilahi— a former ally who has now joined the PTI, a Capital City Police Officer Ghulam Mehmood Dogar (CCPO, Lahore) considered extremely close to Ilahi and the PTI, and at least one justice, Justice Mazahir Ali Naqvi of the Supreme Court. Some retired Chief Justices were also involved but remain in the shadows for now.
After PTI Chief Imran Khan dissolved the Punjab and KP assemblies in January in a bid to force an early general election by creating a constitutional crisis, the Punjab caretaker government transferred CCPO Dogar in preparation for the provincial election, but the governors of Punjab and KP have not yet announced an election date—perhaps because of the mala fide intent behind the dissolution of the two legislatures.
There’s a whole political and constitutional debate ongoing as the constitution stipulates that a fresh election be held within ninety days of the dissolution of a legislature, but there are many issues that pose constitutional and practical problems if some provincial elections are not held simultaneously with those in the center and other provinces.
In the midst of yet another brazen strike on the Pakistan Democratic Movement PDM) government by the superior judiciary, there came a flurry of audio leaks revealing the design stages of an offensive being planned.
To help Imran Khan back into office, Justices Mazahir Naqvi and Ijaz-ul-Ahsan took unconstitutional Suo Moto notice, trespassing into the executive’s space and took up Dogar’s transfer case and reinstated him.
On Monday, the nine-member Bench was no more, a meltdown already had taken place.
It is hard to recall a tighter dressing down of a CJP by his own colleagues in full public glare. The “additional notes” were leaking even before the full judgment they were part of was issued.
The ruling PDM is fire-fighting an economic meltdown, and it has myriad other structural problems it needs to resolve.
Pak Judiciary's Unethical Backing of Imran Khan
In a naked bid to help Imran Khan back into office, Justices Mazahir Naqvi and Ijaz-ul-Ahsan took unconstitutional Suo Moto notice, trespassing into the executive’s space and took up Dogar’s transfer case and reinstated him. They next proceeded to audaciously convert the hearing into the completely unconnected issue of fixing the date for provincial elections and summoned the Chief Election Commissioner.
The overreach and undisguised attempt at political engineering were lost on no one and a furor broke out, with all Bar Associations in the country announcing to file a reference against the two Justices in addition to opposing their inclusion in the new Bench.
But before the two gents in wigs could conclude the dirty business, the audios mentioned earlier were leaked which stopped them in their tracks. They abruptly wound up the hearing asking the Chief Justice to take Suo Moto notice of a conspiracy they had smelt (during the CCPO transfer hearings) to subvert the constitution.
The Chief Justice of Pakistan (CJP) Omer Atta Bandiyal promptly took notice and constituted a 5-4 Bench, his intentions very clear from the fact that the division of the Bench was tilted against the government, and from the fact that he barefacedly included both these Justices in the new Suo Moto hearing.
Then on Friday, Saturday, and Sunday, something inexplicable happened: the usually, meek and muted members of the PMLN pounced on the court. This was followed by Maryam Nawaz, former PM Nawaz Sharif’s heir apparent who launched a fierce, almost unprecedented public assault on sitting Justices and demanded a full court hearing excluding the two implicated Justices.
Thus, began my frantic quest to figure out what had happened. It ended in leaking the Supreme Court’s offer to the PMLN to break the existing Bench and constitute a full court minus the two, not returning any verdict on the election date, leaving the matter to concerned parties, and even restoring the Punjab and KP assemblies so they were free to form their governments wherever they could—all this, in return for not releasing any further the incriminating audios and videos.
Clearly, the nature and number of remaining audio-visuals available for use must have been communicated to the court. The mystery was solved.
Breaking of the Bench
On Monday, the nine-member Bench was no more, a meltdown already had taken place. The Divisions within hung like dirty laundry on the Supreme Court’s walls like in the days of Imran and Qadri’s 2014 dharna.
The Bench had broken with Justices Ijaz ul Ahsan, Mazahir Ali Akbar Naqvi and two others having recused themselves. In Monday’s order, the matter was sent back to the CJP with four savagely critical ‘additional notes’. All four had objected to the constitution of the Bench on various grounds (Bench formation has been a festering issue in the Supreme Court because of visibly apparent biases and groupings).
The ‘additional notes’ refer to the audio leaks as having raised serious concerns, and point to the minds of three Justices, including that of the Chief Justice, as already being made up and therefore the CJ’s having taken it up as “inappropriate” and “not justified”.
One Justice explained his decision to not recuse himself despite his reservations on how the original jurisdiction was invoked and on the constitution of the Bench, for the very purpose of recording his reservations. He delivered blow after withering blow directed at CJP Bandiyal, writing it was inappropriate to include the Bench Justices Ahsan and Naqvi who face unresolved allegations from within the Court, from the Bar Councils and the public. “This inclusion becomes more nuanced when other senior Honourable Judges of this Court are not included in the Bench,” the stinging critique continued.
One Justice who recused himself came close to calling the CJP a cheat, writing, “(the order of the CJP)… does not appear to be consistent with the proceedings and the order dictated in the open Court,” referring to examining the legality and constitutionality of the dissolution of assemblies before considering the matter before them.
The questions framed around this issue, and he recorded each one agreed upon, were missing entirely from the judgment. It is hard to recall a tighter dressing down of a CJP by his own colleagues in full public glare. The “additional notes” were leaking even before the full judgment they were part of was issued.
The “additional notes” appear to have created significant problems in the path of the frequent and improper use of Article 184 (3) which pertains to the Supreme Court’s original jurisdiction of Suo Moto which a recently set precedent can only be the Chief Justice’s prerogative. An important objection made was as to why the Supreme Court (read CJP Bandiyal) took notice when these cases were already being heard in the High Courts.
These notes cast quite a long shadow on the Chief Justice’s conduct. Given that the very constitutionality of the dissolution of assemblies by Imran Khan was also questioned, it may be a hint towards restoring these.
Corruption Across Ranks of Pakistan Politics
Even though the day’s proceedings didn’t reflect the full “deal” or proposal the court made to PMLN for mercy, it came pretty close, possibly to save itself the embarrassment because of the leak a day earlier. It is important to note, that just a few years ago much more significant leaks of judges’ misconduct became public. But at that time, the Pakistan army, the judiciary, and Imran Khan and his party were all on the “same page” of persisting with the hybrid regime.
When it became apparent that Imran Khan was a complete disaster, the page got shredded. But the army, keen to claw back some respect in public eyes, became “neutral” and the judges started to operate in a power vacuum and ran amok for eleven months, mangling the constitution in their power play and bid to carry Imran Khan to the throne once more.
The ruling PDM is fire-fighting an economic meltdown, and it has myriad other structural problems it needs to resolve. But one very important one for political stability is to begin to push the judiciary back into its constitutional remit.
(Gul Bukhari is a Pakistani journalist and rights activist. She tweets @GulBukhari. This is an opinion article and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)