“HE [Chief Justice of Pakistan Sajjad Ali Shah] did not understand the practical limitations to his power” — Hamid Khan, ‘A History of the Judiciary in Pakistan’.

PAKISTAN was already in the midst of a state and societal implosion as a consequence of economic, political, security and narrative chaos (ie a state of total confusion regarding even the basic factual narratives/truths as exemplified by the dangerously wild and unproven public allegations against various state institutions, politicians, judges, military chiefs, intelligence officials etc).

Now adding to this four-headed monstrous chaos is the rapid development of constitutional chaos and judicial chaos. The constitutional chaos has been caused by the PDM government, state officials and institutions such as the Election Commission, for example, by openly defying the clear constitutional provisions to hold the Punjab Assembly and KP Assembly elections within 90 days of their dissolution. This is not a mere crisis but constitutional chaos, because a country which cannot even hold timely elections nullifies the very essence of democracy and constitutionalism.

However, the most dangerous of these various forms of chaos is judicial chaos which is evident from the cold war, and now virtual civil war, between the chief justice of Pakistan and other, dissenting judges of the SC. It is not merely a judicial crisis but judicial chaos, when nearly half the judges of the SC openly criticise the CJP through judicial orders or when the CJP is reluctant to constitute a full court because of the fear of judicial dissent against him, and as a result, a sitting government openly defies the implementation of SC orders by relying on the divide in court.

Judicial chaos is evident from the cold war, and now virtual civil war, between the judges.

Where do we go from here?

Historical amnesia: As Karl Marx rightly said, “History repeats itself, first as a tragedy, second as a farce.” The judicial anarchy of 2023 has a chilling similarity to the judicial anarchy of 1997, under CJP Sajjad Ali Shah, but as the judicial events of 2023 also show, history has repeated itself in 2023 as a tragedy and a farce simultaneously. The current public discourse has highlighted the similarity with 1997: an SC divided into CJP-led judges and dissenting judges. The main difference among these judges is about the CJP’s power to arbitrarily constitute benches to hear cases and the assignment of politically sensitive and constitutionally important cases to a specified bench of judges; the demand for a full court meeting by dissenting judges; aggressive speeches against judges in parliament; parliament amending the law to provide an appeal to a larger bench of the Supreme Court, especially relevant in politically sensitive cases; rival orders by different SC benches nullifying each other’s proceedings; and talk of misconduct references against SC judges.

Therefore, there is a 1997 déjà-vu in the judicial anarchy of 2023 but there are critical differences between the two judicial anarchies. Firstly, CJP Sajjad Ali Shah in 1997 was opposed by a very powerful political executive and a powerful parliament (with the government having a two-thirds majority in the National Assembly) with a weak opposition and an indecisive military establishment. In 2023, there is a weak coalition government, a questionable and incomplete parliament, a powerful military establishment and a very strong popular mobilised opposition against the government. In short, the current government cannot impose its solution by exploiting the divisions among judges and attacking the SC and resultantly, forcing the CJP to resign.

Secondly, unlike 1997, Pakistan is currently imploding under the simultaneously occurring four forms of chaos mentioned above. Unlike the relative stability of 1997, time is running out to save the country from the implosion of anarchy in 2023. Therefore, the outcome of the judicial anarchy of 2023 will not be the same as that of the judicial anarchy of 1997, but perhaps much more disastrous. Sadly, there is historical amnesia among the judges who appear to think that they can somehow defy a repeat of the judicial anarchy of 1997 while taking similar anarchic actions in 2023.

Disastrous outcomes: In the next few months, this judicial anarchy might reach its zenith. If the Supreme Court (Practice and Procedure) Act, 2023, (which provides for the constitution of benches by a committee comprising the CJP and two senior judges and provides an appeal against the orders under Article 184(3) to a larger bench) is not implemented or is judicially suspended, then the present dissenting judges may consider not sitting on the benches or further rival orders may be passed by judges against each other, leading to the existence of virtually two SCs.

Also, the sword of complaints of judicial misconduct or audio leaks against judges might be used to harass some judges. This might lead to two possibly disastrous outcomes. One group of judges will prevail over the other, not because they are necessarily constitutionally correct but because they implemented a better strategy to prevail over their fellow judges. Sadly, judges will be reduced to playing strategic games. Or, unlike 1997, there will be a complete deadlock between the CJP and the dissenting judges with the danger of civil unrest, but with the government and parliament being too weak to resolve this issue. This will pave the way for direct or indirect intervention by the deep state (like the one by COAS Ashfaq Kayani for the restoration of judges in 2009) to resolve this deadlock but with unforeseen consequences for constitutional democracy and judicial independence in Pakistan.

Can this judicial anarchy be prevented now? The buck stops with CJP Umar Ata Bandial as he has the ultimate power and responsibility to save the SC from this anarchy. The solution is simple: call a full court administrative meeting to discuss and resolve the key disputes regarding the constitution of benches and the fixation of political and important constitutional cases before benches which are non-controversial. Furthermore, fix all judicial cases arising out of the KP Assembly and Punjab Assembly election disputes before a full court. Will this happen? Sadly, recent judicial events show that such a consensus-based solution is unlikely to be adopted.

But, as the philosopher Walter Benjamin, said “It is only for those without hope that hope is given”.

The writer is a lawyer.

Published in Dawn, April 10th, 2023