Parsa Venkateshwar Rao Jr | Pakistan's Supreme Court an unlikely political hero

Pakistan’s Supreme Court does not figure very prominently in the country’s governance system. It is monopolised by the Army, the various religious groups and the political parties. The Supreme Court does not even occupy the high ground of impartiality and wisdom as it does sometimes in India. But on Thursday, Chief Justice Umar Ata Bandial and four of his fellow judges — Justices Ijazul Ahsan, Mazhar Alam Khan Miankhel, Munib Akthar and Jamal Khan Mandokhail — delivered a clean, decisive verdict. They called out the political foul play that Prime Minister Imran Khan had indulged in to avoid facing the non-confidence motion moved by the combined Opposition. In cricketing terms, Imran Khan had indulged in ball-tampering.

The importance of the verdict by Justice Bandial and the others is in proportion to the audacity that Imran Khan displayed in misusing the provisions of the Constitution. Imran displayed the arrogance and recklessness of the man in office, a common trait in the political scenario of South Asia. And he would have easily got away with it because he put in motion the process of the National Assembly and the holding of elections in the next three months. Speaker Asad Qaiser and deputy speaker Qasim Khan Suri obliged Imran Khan, and so did the titular President, Dr Aril Alvi. The Supreme Court had to call the bluff and it did, and it did so in short order. The judgment would come later and the so will the reasons.

The Supreme Court did three things through its Thursday night order. First, it held the deputy speaker’s decision to throw out the no-confidence motion as unconstitutional. It is to be recalled that deputy speaker Suri invoked Article 5 of the Constitution and declared that the non-confidence motion came out of the conspiracy hatched by a foreign power, and that the entire Opposition was in cahoots with the foreign power. The non-confidence motion was declared to be “anti-Pakistan” and therefore unconstitutional.

This was the most dangerous move of Imran Khan, to delegitmise the entire Opposition as anti-national and disallow the non-confidence motion because it comes from a so-called anti-national quarter.

Had this gone unchallenged, it would have set a dangerous precedent — the presiding officer, who usually belongs to the ruling party, declaring the Opposition as anti-national. It shows the ways that a party in power can misuse constitutional provisions and do the most atrocious things in the most legal way. That is why, at one point during the hearing, Chief Justice Bandial asked the government’s lawyers that if everything was done according to the Constitution, where then was the constitutional crisis?

The judges through their questioning showed that the parliamentary national security committee meeting, where the so-called “threat letter” from the foreign power was shared with the members of the committee, and which became the basis of the deputy speaker’s decision to throw out the no-confidence motion, was nothing more than a charade. The court wanted to know whether foreign minister Shah Mehmood Qureishi was present at the committee meeting, and it was told that he was away on an official tour. The government’s lawyers presented the minutes of the paper to the court, which revealed that it was nothing more than a way to provide a basis for the deputy speaker’s decision.

The court’s order then fell into a logical sequence. As the deputy speaker’s decision on the no-confidence motion was invalid, it followed that the no-confidence motion was to be restored and debated and voted, and the National Assembly should not be prorogued until the debate and vote was carried through. This was an important direction. It does not matter how the debate plays out, and who wins. The issue was Imran Khan’s attempt to sabotage the parliamentary proceedings and using the presiding officers to do so was stopped.

Imran Khan’s recommendation to President Alvi to dissolve the National Assembly also becomes invalid because he is facing a non-confidence motion. His resignation and that of the entire Cabinet to make way for a caretaker government in the run-up to elections also therefore turns out to be premature. The court had clearly shown that the Prime Minister must face the National Assembly. Imran and his lawyers tried to invoke the populist argument that a Prime Minister is elected by the people and not by the National Assembly. The fact is that in a parliamentary democracy, the Prime Minister is the leader of the legislature, and he is elected to it by the party with a parliamentary majority. Khan had grown to believe he would not be judged by fellow members of the National Assembly because he considers them to be corrupt. It is this moral arrogance that drove him to break all parliamentary norms. The court has put a stop to it.

The Supreme Court’s decision does raise the important question as to whether the judiciary can interfere in the proceedings of the legislature. But the order showed that the court wanted the constitutional provisions which were laid down for the functioning of the parliament should be followed. The court did not even interpret the Constitution, but simply pointed to the provisions of the Constitution.

By doing what it did, Pakistan’s Supreme Court showed that tampering of the constitutional provisions should be disallowed. The temptations of the politicians and the parties, especially those politicians and parties holding office, to throw the rules out of the window, is understandable. But it becomes the duty of the court to play the good umpire.

The Supreme Court of Pakistan has emerged as the most unlikely hero in a country where democracy has been on the edge, and where the Army traditionally plays the role of the arbitrator. The court’s intervention to restore constitutionality assumes crucial significance in this context. It is possible to make the cynical argument that the Army continues to play the role of a praetorian guard as the Army did in Turkey some years ago. It seems, however, that in Pakistan, as in Turkey, the Army has been pushed into the wings because of the United States being unwilling to finance governments run by the Army. The Supreme Court then becomes the torchbearer of democratic norms, and with all its imperfections, the politicians in Pakistan turned to the court for justice. It is a positive aspect of a volatile situation.