COMMENT: Death of necessity: five days that captivated the nation

Published April 8, 2022
A general view of the Supreme Court in Islamabad on April 4. — Reuters
A general view of the Supreme Court in Islamabad on April 4. — Reuters

THE Supreme Court has done it. It has decided a limit to what Pakistan will stomach and has given us our bottom line, below which the Constitution simply cannot be taken.

That line is the trampling of the Constitution by a civilian chief executive after he has lost the support of non civilians. And that loss of support has become evidenced and apparent.

But for now, credit must be given to the court for having done what was the necessary and only fair thing to do: declare the deputy speaker’s actions of April 3 illegal, and then gone on to declare every consequence of that action illegal, thereby directing voting to be held upon the vote of no confidence. But if remarks are any marker, we have been taken on a veritable roller coaster ride that didn’t really make sense for most of the five days it continued.

Read: 'The Constitution wins': Legal eagles weigh in on historic SC verdict

In our history full of assaults upon the Constitution, never before has a prime minister dissolved his own assembly when faced with a vote of no-confidence. Amongst all the dictators and carpetbaggers who have graced our democratic halls, never before have we found anyone with the audacity to go against the plain language of the Constitution to this degree.

History

Of the assemblies that have been dissolved, they were all undone by various forms of un-elected dictators and bureaucrats, and the actions were then saved by our Supreme Court to one degree or another and upon one excuse or another. First, under the ‘doctrine of necessity’ in the Molvi Tamizuddin Khan case when the president of the assembly challenged its dismissal by Governor General Ghulam Muhammad right before it tabled the Constitution in 1954. Then, in 1988 when Haji Saifullah challenged the dismissal of Junejo’s government by Zia, and the Supreme Court held that the removal was unconstitutional but refused to restore the National Assembly. Ahmed Tariq Rahim sued the federation when Ghulam Ishaq Khan dismissed Benazir’s govt in 1990, which the Supreme Court upheld by majority, citing nepotism, corruption, horse trading and a lack of efficiency as reasons in support.

Ghulam Ishaq Khan again dismissed the govt which came thereafter, headed by Nawaz Sharif which was restored in May 1993. The PM then advised its dissolution himself in July 1993, as per a pre-arranged formula dictated to him and the meddlesome president by a public servant reporting to the secretary of defence, also known as the chief of army staff.

The next government was Benazir’s again and this one was dissolved by Farooq Leghari in 1996, paving the way for a two-thirds majority for ‘Amir Ul Momineen’ aspirant Nawaz Sharif. This dismissal was also challenged in the Supreme Court, and once again the court — led by a politically astute Sajjad Ali Shah — by 6-1 supported the dismissal of governments as the president’s right to determine in necessity, citing the nepotism and corruption of the Benazir govt as the catalyst.

Why five days?

One question will remain etched in every legal mind, which has been the cause of nervous distress across these five days: what took them so long?

The Sunday suo moto seemed to indicate a swift conclusion to an open-and-shut legal problem. It started with the court wanting to know whether it could intervene in the process of parliament, given that there were certain protections afforded to the actions of the speaker in the Constitution.

Luckily, the last time the Supreme Court asked this question was not too long ago when it was concerned with Nawaz Sharif’s speaker not sending notice of his disqualification (by the Supreme Court) to the ECP. The court had declared that a speaker cannot act illegally and expect to remain immune from the court’s intervention.

Suo moto notices are inquisitorial proceedings; the court frames a question of public importance and then seeks assistance from the attorney general. It is not usual for it to hear all parties as if they are adversaries. Yet, it started with giving two days to the opposition, which began unprepared and the court remarked its way into the headlines. We were told quite early on that the court would concern itself only with the legality of the speaker’s actions and stay away from matters of policy and politics. But then, it asked the opposition why it did not attend the national security proceedings. What was that question but one regarding policy or the opposition’s politics?

Why did it matter that the rupee lost its value or that the minority parties were getting together unnaturally? These were comments from the bench. When this same court has threatened justice though heavens may fall, why were we being told that all of us were to get along and that an order would be reasonable and in the national interest. Why was the court wasting its time commenting on how the deputy speaker had acted upon allegations and not upon a declaration by a court of law?

Could he have acted thus to thwart a constitutionally enshrined process of the vote of no confidence if there had been a declaration by a court of law which alleged foul play? Are the members of the assembly too simple to see it for themselves and vote accordingly? Must our elected parliamentarians be shepherded by unelected wise men who look down upon them?

But then such was the roller coaster, that remarks made by Justice Munib Akhtar echoed exactly this sentiment; the speaker not letting the representatives decide what they wanted was wrong, and he could have informed them of the conspiracy and left it to them to decide for themselves.

Furthermore, what was the point of investigating the National Security Committee briefing or the contents of the supposed memo? Are we to understand that had there been some form of allegation of conspiracy between a foreign government and the opposition, in the minutes of the National Security Committee, it would have an import upon whether the court thought the speaker did or did not act constitutionally?

In the end, the final twist appeared in the shape of the court asking how long the electoral process would take. Why was the chief election commissioner summoned and asked about how ready we were for elections? This was when the odds looked to have shortened upon a decision of necessity. But then came the dawn: a clear and unambiguous order, undoing all the rot which has set in as a consequence of Suri’s actions.

Will there be consequences? Perhaps that is asking for too much. For now, let us bask in the glow of our Constitution, for once upheld to its real meaning and in all its glory.

Published in Dawn, April 8th, 2022

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