This article was published in Arab News on Apr 04, 2023 at the following link

https://www.arabnews.pk/node/2280936

Pakistan is in the middle of an unprecedented crisis over relations between the judiciary and the executive.  Strains and turf-wars between any two organs of the state are not unusual. The executive, judiciary and legislature are considered equally powerful organs in a democracy and, despite distinct demarcation of turfs of each one of them, overlapping sometime leads to strains. The phenomenon can be found in any democratic state.

In the US, for example, the Congress and the President keep clashing on annual budgets, legislation and appointments. Congress is a separate centre of power which asserts its authority even when the President and the majority of congress belong to the same political party. The judges in the US Supreme Court are often driven by their ideology and the appointment of a new judge often becomes a tense test of nerves between the Congress and the President.

Pakistan is also not immune to inter-institutional strains. Most of the time these strains are prompted not by ideological differences but by encroachment into each other’s domain or due to political considerations. Although Pakistan has a parliamentary form of government in which the Prime Minister is the Chief Executive and the President is generally vested with only nominal powers, repeated military interventions gave extra powers to the President to dismiss a Prime Minister in the past. Conflicts between the President and Prime Minister were so frequent that four Prime Ministers were dismissed along with the dissolution of four National Assemblies (the popularly elected house of the Parliament) in eight years from 1988 to1996. In 2010, through the 17th and 18th Constitutional amendments, the powers of the two highest state offices were rationalized and now the President enjoys only nominal powers. Despite this, the current President and Prime Minister have exchanged toxic letters lately blaming each other for violating the spirit of the constitution.

The judiciary also, at times, takes up issues which either belong in the domain of the Executive or the Election Commission.

Ahmed Bilal Mehboob

Pakistan generally faces another form of inter-institutional strain which is rare but not unique. The military, which is a part of the Executive, has been exerting its influence far beyond the norms of a normal democracy, for the past 75 years of Pakistan’s existence. The military, being the most powerful institution in terms of its firepower, has dominated the policy formulation in key areas of statecraft. Five months ago, the outgoing army chief said the military would not interfere in the political affairs of the country any more. If this intention of the military is implemented in letter and spirit, a major part of civil-military strains will be addressed. 

The judiciary also, at times, takes up issues which either belong in the domain of the Executive or the Election Commission. The Supreme Court had reversed the decision of the Pakistan government to privatize the loss-making public sector steel mills in 2006. The state suffered huge losses for the next 16 years because of this decision, which apparently was beyond its area of competence. The same court had also cancelled a deal signed by the government with a foreign firm for developing a gold and copper mine in Reko Diq, Balochistan which resulted in a penalty of $11 billion, imposed on Pakistan by the World Bank tribunal.

The judiciary, on apparently questionable grounds, had also reversed some of the legislation passed by the Parliament.

The instances of inter-institutional interference had reached such a high level that in 2019, the then-Chief Justice of Pakistan, Justice Asif Khosa floated an unprecedented proposal to hold a grand dialogue among various state organs at the highest level chaired by the President. Although the proposal was ignored by the government, it did highlight the gravity of the situation.

As these lines are being written, the relations between the Supreme Court and Government of Pakistan have deteriorated to such an extent that the government has openly declared it won’t accept the proceedings and judgment by a Supreme Court bench headed by the Chief Justice. The Chief Justice had earlier rejected the government plea for the formation of a full court that includes all judges of the Supreme Court to hear the case about the postponement of elections of two provincial assemblies.

Inter-institutional strains, to an extent, are a part of the democratic system of checks and balances and in a normal democracy these help in checking the tyranny of any one institution. In the context of Pakistan however, the strains seem to have squarely reached breaking point.