The Supreme Court of Pakistan should not have indicated so baldly which way the wind was blowing by the remarks of the judges on the bench hearing the presidential reference on the question of open balloting for the Senate elections. The remarks of various judges have been to the effect that the Election Commission of Pakistan was responsible to ensure that there was none of the buying and selling of votes, indicates that the Court might be veering in the direction of deciding in the government’s favour, and allowing its recent ordinance to take effect, which prescribes for electors to cast open ballots. They indicate that the Court is preparing to decide to jettison the secret ballot, and rule that the inability of the Commission to guarantee a fair and free poll under a secret ballot, makes valid the government decision to have an open ballot.
At the same time as these spectres were being raised by the Court itself, the possibility of an outside force taking a hand was raised by the latest episode in what has become a running battle between Mr Justice Qazi Faez Isa of the Court, and the Court itself. Mr Justice Isa has written a dissenting note to the order of the five-member bench ordering that he not hear cases involving the Prime Minister, in which he has expressed the hope that the Court would stand against all constitutional violations. That Mr Justice Isa’s problems with the government began when he authored a judgment in the Faizabad sit-in case that offended a particular institution is known to all. The move by the CJP against Justice Isa unnecessarily forces one to draw a conclusion that the same powers might again be in play.
The Chief Justice must remember that the Supreme Court, and the judiciary, must not be compromised, for it is indeed the institution in which, if faith is shaken, people will not know where to turn. The judiciary went through a traumatic movement to gain its independence. It cannot fall back into subservience to any other institution. Before validating any other institution’s illegal actions, the Supreme Court should ask itself why this validation is needed. This may enable it to follow the path of making decisions which further the cause of constitutionalism.