THE judiciary has divided the nation. There are those who support its various contentions against the executive based on the law and legal proceedings. Others find its allegedly supremacist thought and action detrimental to the cause of parliamentary democracy in Pakistan.

Straight after the nation took a sigh of relief on the memo case, the NRO case has raised its head again, this time laced with the grim prospect of a showdown between the Supreme Court and the chief executive. What will happen next? Prime Minister Gilani’s indictment, possibly leading to a sentence and dismissal from office, and his replacement by a caretaker prime minister responsible for holding the general elections?

This is not a straight tussle between the executive and judiciary, generally understood as a clash of institutions. It is the asymmetrical relationship that matters. The government draws on raw, inchoate and amorphous public support while the court relies on the codified black letter law. Whereas the prime minister depends at best on an institutionally weak and divided parliament, the court operates both collectively as a bench and institutionally as a principle of justice.

Gilani in 2012, like Nawaz Sharif in 1997, faces a strong, relatively inflexible and persistently assertive chief justice. Gilani’s current position of weakness compares poorly with Nawaz Sharif’s position of power 15 years ago. During a prolonged showdown with chief justice Sajjad Ali Shah, Nawaz Sharif split the bench. His party men stormed the Supreme Court building and thus bought the crucial time to win the support of the breakaway faction of the bench that finally restored the 13th and 14th amendments earlier annulled by the court.

As the story goes, Nawaz Sharif suspected that then COAS Gen Jahangir Karamat was behind the move, that the latter got cold feet in the end and withdrew his support for a judicial coup in the making. Both president Leghari and chief justice Shah had to bow out. Nawaz Sharif spared Gen Karamat at that time. However, he took action against him when the latter’s contentious speech in Lahore provided an opportunity. The absence of opposition leader Benazir Bhutto from the country only helped Nawaz Sharif.

On the other hand, Prime Minister Gilani cannot reasonably hope to split the bench — much less intimidate it such as in 1997. While COAS Gen Kayani put himself openly in the anti-Gilani camp in the memo case, his backing for Chief Justice Chaudhry in the context of the conflict between the executive and judiciary was taken for granted by the media, even without any public commitment in this regard. Unlike in 1997, the current leader of the opposition is a strong player on the political stage. Not surprisingly, Justice Chaudhry appears strong, while the prime minister is perceived as vulnerable.

The court’s proceedings last week have given rise to controversy. Elements belonging to the ruling coalition believe that the court is playing politics using the instrument of law. That explains why the government has not taken up the task of fighting the legal battle in earnest. It is waking up to the rude reality of the legal process only now.

Indeed, many see the judiciary as a controversial institution of the state. International jurists find its frequent use of suo motu powers adventurous. A large section of the lawyers’ community finds its role hostile to the rule of public representatives. Many in civil society bemoan what they see as the court’s narrow interpretation of the law. In other words, in many quarters justice is not seen to be done.

Obviously, the court is not impervious to the sea of criticism lashing the shores of jurisprudence. But one must question whether the resort to bland constitutionalism to deal with a pulsating, thriving and boiling political situation on the ground is the correct thing. Tragically, while military rulers inserted scores of articles and clauses in the constitution and thus disfigured it beyond recognition, the judiciary is sometimes seen to have relied on those very insertions.

What next? Will the indictment of the prime minister lead to a sentence leading to his dismissal from office? Who will be the new prime minister of the PPP-led coalition government? Will there be change before the Senate election, or at least before the budget? Are elections for the National Assembly on the horizon, some time later this year under a new prime minister? Or, will the court revert to its function as its modus operandi, displayed during the last three years in the interest of preserving the system.

In the case of new elections later this year, President Zardari may have to swear in a PML-N government led by Nawaz Sharif. Can Pakistan live with co-habitation between the head of state and the head of government belonging to different parties, as in the case of president Abdul Kalam and Prime Minister Manmohan Singh in India some years ago? But the get-Zardari campaigners would not like to accept this. Alternatively, this situation might lead to impeachment or perhaps resignation of the president or at least to the reopening of cases in the Swiss courts.

The world is aghast at seeing the country sink into the morass of crude power politics on top, while the development agenda and the depressing performance of police, health and education departments and the transport infrastructure in general slip by the day. There is a grand delusion about terrorism not hitting Pakistan’s economy, culture and mental health, the country not getting isolated in the world community and the national justice system not having touched rock bottom under the watchful eye of the iconic chief justice of Pakistan.

In the absence of a new consensus on the realignment of forces making policy and on reshaping the national agenda along forward-looking lines, we are destined to lose.

The writer is a professor at LUMS.