From left to right: Senator Raza Rabbani, who has boycotted the polls, Justice (retd) Wajihuddin, the PTI candidate, and Mamnoon Husain, the PML-N candidate. — File photo.
From left to right: Senator Raza Rabbani, who has boycotted the polls, Justice (retd) Wajihuddin, the PTI candidate, and Mamnoon Husain, the PML-N candidate. — File photo.

Mamnoon Husain, the government’s presidential nominee, appears to virtually have won the July 30 poll even before the first vote has been cast. But with the main opposition party, the Pakistan Peoples Party (PPP), having boycotted the process, it would almost be a cliché to say that this could well be the country’s most controversial presidential election in recent years.

The ruling Pakistan Muslim League-Nawaz (PML-N) has assured itself of a walkover by first succeeding in changing the schedule of the elections to a date of its own choosing and then by getting “unconditional” support from the Muttahida Qaumi Movement (MQM). But it has also managed to throw into sharp relief the extremely disturbing divides within the polity. By moving the Supreme Court to get the date of the election changed, something which is the exclusive constitutional domain of the Election Commission of Pakistan, the party has revived controversial arguments that the powerful institutions of the state (read, the superior judiciary under the present circumstances) always favour politics of a certain ideological hue, one that stands for a strong centrist national ideology with heavy input from religion.

The parties that stand for any other brand of politics may easily claim that they have never been given a level playing field in national politics. Whether this claim has any merit or is just a ruse by these parties to hide their failures elsewhere in politics, and most specifically in governance, is of little consequence in the larger argument about which way the state and society in Pakistan must move in order to get out of the troubled times they are in. The ruling party’s resort to a judicial order on the election schedule, the PPP’s boycott of the polls, calling them a step against the federation, and the court’s argument that religious obligations, although not mandatory, must trump all other considerations in the business of the state are simultaneously the political conflicts of the future and the ideological clashes of yore.

A bit of history may provide some context. In the last 15 years Pakistan has had three presidential elections, two of which were won by Pervez Musharraf while he was still an employee of the government. The Supreme Court has never entertained any petition which challenges Musharraf’s eligibility to run in these polls. The question of how an army officer, technically subordinate to the secretary of the defence ministry, could go on to head the state has never become the subject of a constitutional case heard by this country’s august courts in the past 15 years. The only time that a case involving Musharraf’s participation in the presidential polls was heard was in 2007 but that too concerned a different question, that of whether the same assemblies could serve as the electoral college for two consecutive presidential elections. Even in this case, the court came up with a strange half-way house decision: Voting could take place but the result could not be notified.

The point of taking this decidedly long and admittedly winded road, to discuss the upcoming presidential polls, is to highlight that the Supreme Court of Pakistan only found its ability to make prompt and unambiguous decisions after the restoration of Chief Justice Iftikhar Muhammad Chaudhry in 2009. It was a time when the most powerful institution in the country, the military, was at its most vulnerable: It was engaged in a war of attrition with religious militants it had once supported and sponsored and it had just relinquished power after almost a decade, with its public persona of an efficient, disciplined and incorruptible institution being in tatters.

Even without going into the much debated subjects of judicial activism versus judicial restraint, and their usages as well as their impacts on a democracy in transition, it is not difficult to argue that the apex court moved extremely quickly in the post-Musharraf era to consolidate its position and to concentrate as much power as it could in the top ranks of the country’s judiciary. In the process, over the last four years or so, it has so radically changed the concepts of rule of law, justice and constitutional jurisdictions that the legal and judicial landscape of the country no longer resembles that of the past – recent and distant both. And this explains why the centre of power has shifted so decisively in Islamabad that no institution of the state feels strong enough to stand up to the diktats of the exalted bench.

All the cases where the Supreme Court has assumed the role of the investigator, the prosecutor and the judge all rolled up in one and where it has extended its jurisdiction to the domains of the executive and parliament have had one definitive impact on the polity. This is that the institutions of the state which – unlike the executive and parliament – did not have any ongoing, historical, real or imagined conflict with the apex court stopped asserting its constitutional independence fearing reprimand by the judges, daunted by their populist attention-mongering and the praise they were receiving from a large part of the media and the chattering classes.

Take, for instance, the Election Commission of Pakistan (ECP). The last time the head of an election commission tried to assert his independence vis-à-vis an ever ascendant Supreme Court was in 2011-2012 but, riding the crest of media popularity, the judges were still able to have their way, ordering the election officials to come up with revised electoral rolls within weeks even when it meant bypassing constitutional procedures.

Chief Election Commissioner Fakhruddin G Ebrahim, meanwhile, has surrendered the independence of the ECP before the apex court without so much as a murmur. When the government wrote a letter to the ECP immediately after it had issued the schedule for the presidential elections, Ebrahim’s subordinates were firm that this was a matter on which they would not budge but then hastened to add that they could crawl if the Supreme Court ordered them to walk on changing the schedule. What has resulted from such omnipresence and omnipotence of the Supreme Court among state institutions is a democracy which is definitely not presidential as it was under Musharraf but at the same time is also not parliamentary with trifurcation of powers between parliament, the judiciary and the executive. It is a quasi-democratic setup in which a group of unelected judges enjoy a veto over everything that the executive and parliament do.

If this is in reaction to what happened to the judges during Pervez Musharraf’s military regime, they seem to be punishing those very politicians who stood by them during their hour of trial. If the current hyper-activism on the part of the court is a case of compensating for letting Musharraf become the head of the state and the government while still being in the military uniform, it is clearly overkill.

Regardless of the reasons for this power shift, its implications have been immense. Many constitutional concepts – including international immunity for heads of the state and the government – have either been redefined or done away with; the scope of fundamental rights now extends to national security (as in the memo case) and religious affairs (as in the lone hearing and subsequent decision over the schedule for the presidential election); and the tenets of natural justice have been recreated by the court openly becoming a party in investigating many corruption cases by appointing officers of its own choice to prosecute the accused and by starting trials at the top of the judiciary rather than working as the court of ultimate appeal.

If nothing else, the apex court having become the arbiter of the first and last resort in all issues concerning state and society is sharpening existing political divides and creating new ones as well. The opposition and the government don’t see eye-to-eye on most political, economic and even constitutional issues but the court has left no proverbial stone unturned to make it clear whose side it is on, creating the possibility of destabilising political agitation in the coming months.

If the president of the republic is to be the symbol of the federal nature of the state then the only sensible way of going about electing him would be a non-confrontational, non-controversial one. Disregarding all other opinions and letting religious reasons be the only ground for rescheduling the presidential election is a dangerous reassertion of a national ideology that has harmed the state and society like nothing else.

The political class, the intelligentsia and civil society can ignore all these developments and possibilities only at their own peril – as some sections of the polity have already found out since 2009.

— By Badar Alam

— Statistics by Zafarullah Khan (Head of Centre for Civic Education, Pakistan)

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