“IMRAN Khan is the new establishment”, was a comment that caught one’s eye on Twitter, but even after having tried as hard as possible, I can’t seem to remember who wrote that, and so am unable to properly credit the individual who tweeted it.

Given the victimhood narrative successfully developed by Mr Khan and PTI, and propagated effectively through all genres of the media, since the former prime minister was forced out of office in a vote of no-confidence in the National Assembly last April, the mentioned tweet appeared to be oxymoronic.

How could the ousted prime minister, who is supposedly on the receiving end of the wrath of the establishment, be the ‘new establishment’ himself? More so because PTI stalwarts such as Fawad Chaudhry have publicly expressed scepticism over the military’s stated stance of having become apolitical.

Does this mean that the tweeted claim was rubbish and should be dismissed out of hand or perhaps warrants some looking into? One need only examine the role of two key institutions, the military and the judiciary, over the past 45-odd years to understand where that comment was coming from.

Misgivings are being created by the exercise of authority by the ‘master of the roster’ in how the benches are formed.

For now, let’s not go further back than Gen Ziaul Haq’s coup in 1977 and then Gen Musharraf’s 1999 military takeover. What is common to both? Both were endorsed by the country’s apex court. In the latter case, the military ruler was even granted the right to amend the Constitution.

I am sure the greater national interest motivated the senior-most judges to come to the usurper’s rescue. What other factor could have influenced the honourable men who, like the military chief, had also taken an oath to protect the Constitution?

Zia called the Constitution a worthless piece of paper in an interview; the judges demonstrated with their decisions that he was right. When they endorsed every one of Zia’s actions, they effectively shredded the Constitution and tossed it into the bin.

It was bad enough they were endorsing a coup d’état because power flows from the barrel of a gun, but they gleefully held a sham trial to order the hanging of an elected prime minister as well. One of the justices who voted to uphold the death sentence in the appeal before the Supreme Court later lamented that the decision owed itself to pressure by Zia and not the law.

When democracy, or a watered-down version of it, was restored in 1988, the SC happily endorsed the ouster of elected prime ministers and the dismissal of parliament some three times over the next nine years, upholding the military-backed action under the infamous Article 58-2(b) inserted into the Constitution by Zia.

Musharraf’s coup was endorsed even more heartily by the Supreme Court as he was also granted the right to amend the Constitution and given three years in which to hold elections and restore parliament with considerably diluted powers/authority, while remaining an in-uniform president.

Why am I recalling all this, you might ask, as everyone has a clear-cut memory at least of our recent history. Well the purpose is to highlight the perception that while the military may have turned as apolitical as it could possibly do, the superior courts may not have followed that route.

We needn’t turn the clock back further than five years and see how the former army chief’s personal ambitions and worldview came to dominate even superior court verdicts under two successive former chief justices.

What resulted was instability and political turmoil, and worse still, a split down the middle in society. The deep division, the polarisation that cuts across all institutions, to my mind, will shake the foundations of our beloved, yet blighted, land for a while to come. The economic distress is just one manifestation.

In last year’s Supreme Court verdict, the floor-crossing clause was interpreted thus that many constitutional experts and lawyers said it was tantamount to rewriting the Constitution. One can’t and should not doubt the sincerity or the good intentions of the honourable authors but surely anybody with Pakistan’s good at heart can discuss the cause and effect.

Additional misgivings are being created by the exercise of authority by the ‘master of the roster’ in how the benches are formed to hear cases and who gets to sit on these. The office of a respected Karachi lawyer has taken a quick-fire look at recent years and these numbers emerged.

In recent years in cases of constitutional/political import, groups of particular judges have heard 70 cases, while some other judges of the same august Supreme Court a mere nine. There could be a perfectly legitimate reason for this such as legal expertise of a judge in one particular area or the other but then that criteria should be transparently spelt out in order to prevent doubts from arising.

The most recent example is a case in point. The Constitution clearly spells out that once an assembly is dissolved by the chief minister, elections are to be held within 90 days. The delay in the announcement of a date by the Election Commission of Pakistan was the subject of petitions in high courts.

Taking suo moto notice, the Supreme Court took up the case. But did not heed pleas to form a full court comprising all members as it was matter of constitutional importance. Given how clearly the Constitution states the election time frame after dissolution, I doubt the decision would have been different than the one delivered by the five-member bench.

This is why the perception is being created that from non-appearance in court cases, to being granted bail very expeditiously, to getting all forms of relief, Imran Khan appears as powerful as the establishment was until recently. It may only be a perception but it still needs to be addressed.

The writer is a former editor of Dawn.
abbas.nasir@hotmail.com

Published in Dawn, March 5th, 2023