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Clash Of Institutions Will Destabilise Delicate Balance Of Power In Pakistan

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Usman Khan writes about Supreme Court’s 18 May judgment that ordered the government to lift the coronavirus lockdown and says that the verdict came as a shock to the legal fraternity as it was a clear case of meddling in executive affairs.

On 18th may 2020, the Supreme Court of Pakistan passed a judgment ordering the government to lift any semblance of a lockdown in place in the country. The 6-page judgment passed by a 5 member bench headed by Chief Custice of Pakistan Gulzar Ahmad came as a shock to the entire legal fraternity of Pakistan. The judgment read like an opinion piece or a news report rather than a legal judgment of a 5 member bench of the top court in Pakistan.

The honorable chief justice stated that the coronavirus was not a pandemic in Pakistan and questioned why such resources were being spent on combatting a single virus.

The Pakistani constitution contains a concept called ‘Trichotomy of Power’ where the state is divided into three major institutions called ‘Legislative’, ‘Executive’ and ‘Judiciary’ and all three are held, by the constitution, to remain confined within their limits and not to cross into the domain of the other party. This delicate balance ensures the country is not under the dominion of a single institution and all institutions are placed under a series of check and balance where they themselves create limits upon each other. Such a delicate system requires absolute balance and demands that all limits be respected and through this respect they act as a shield against any undemocratic step taken by any institution.

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Unfortunately, the history of Pakistan has been very different where the clash of institutions has been common and such steps have been used to weaken this democratic shield to allow elements from the establishment to survive and gain power.

The SC judgment of 18th May is one of the many judgments the court has been declaring against the executive be it the extension of the army chief or removal of anybody that they feel is not doing enough. The courts have openly declared that they shall enter the domain of the executive and interfere as much as they can.

The reason behind this overreach is the fact that this delicate balance that ensures the trichotomy of power is now in a state of chaos. After 70 years of constant interference in the domain of the executive, the state is now powerless and helpless to stand against any interference be it from courts or from the very sections that make the executive like bureaucracy. The broken down central power is now being torn apart and the establishment that needs a weakened executive to exert maximum influence, is making sure that this clash is not only allowed but also kept in a state of continuance for an extended period.

It is no secret that whenever the executive has asked the judiciary, its equal organ, to stand with it against the growing power of the establishment; the institution that looks to provide justice always stood against the executive. It is now a weakened skeleton, unable to stand against anybody and even today as the court order the executive to bring forth reports and to immediately reverse any orders that they passed within their domain. The once central institution within the country stands broken.

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It is often stated that the problem with Pakistan is that it has incompetent leaders and incompetent executive in nature. But that is a misconception. The executive is not incompetent, but it is made incompetent. The executive has faced repeated interference from the establishment which either came from the military rolling tanks on the capital or from the courts that passed questionable judgments to break the institution.

While the chief justice may believe that he is doing the right thing, it is without a doubt that his actions have shattered the constitutional framework which demanded that the courts do not interfere into the domain of the executive and to strengthen the executive as much as they can.

As cases in lower courts remain unsolved and people wait generations for justice, it is an absolute travesty that the courts are questioning the amount of seriousness the government is employing in combatting a pandemic whilst ignoring the issues that fall under their own domain. This flawed judgment will go down in Pakistan judicial history as another example of the clash of institutions that is taking place within Pakistan.

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