Imran’s legal games

Published May 7, 2022
The writer is a lawyer.
The writer is a lawyer.

“Though this be madness, yet there is method in’t.” — Hamlet, William Shakespeare

ONE of the two central pillars of democratic constitutionalism, namely, the peaceful transfer of power through a vote of confidence or no-confidence in the National Assembly and the Punjab Assembly, and the constitutionally binding judgements of the superior courts on this issue of transfer of power were blatantly violated and sabotaged by Imran Khan’s PTI government and his public office holders.

Read: Supreme Court restores National Assembly, orders no-confidence vote to be held on April 9

Is Imran Khan following the example of Hitler in the 1930s or are there some defects in his personality which have given rise to this constitutional madness? I think both these explanations are erroneous. Hitler’s fascist politics was a highly sophisticated project requiring an intellectually rigorous hate ideology, an evil brilliance in political strategy and a highly organised and violent terror organisation. Although it has used fascist and authoritarian tactics, Imran Khan’s PTI is not Hitler’s fascist party because the PTI’s saving grace is that it is too politically mediocre, too impatient with political realities, too consumed by ad hoc strategies and it lacks a terror outfit that has the potential to challenge or infiltrate the coercive institutions of the Pakistani state.

As for Imran’s uncontrollable ego and authoritarian personality as an explanatory tool, potential constitutional collapses cannot be reduced to, or explained, by personality flaws.

Imran’s legal philosophy: The foundations of Imran Khan’s legal philosophy are two-dimensional. The first dimension challenges the superior courts’ monopoly over constitutional interpretation. In other words, the legal strategy adopted by the PTI’s deputy speaker to defy the Supreme Court’s orders in the no-confidence process, and the Punjab governor’s and the president’s defiance of the Lahore High Court orders regarding the oath-taking of the new chief minister, was a challenge to the exclusive monopoly and finality of the superior courts’ power to authoritatively interpret the Constitution.

They tried to defy the orders of the Supreme Court and the Lahore High Court by asserting that their executive constitutional interpretation is as constitutionally valid as the judicial interpretation of such constitutional issues.

Read: ‘Misinterpreting’ PM’s powers to remove governor

This might have some superficial historical parallels with the Jeffersonian idea of departmentalism (the executive and legislature having equal authority to constitutional interpretation) or the battle over the shared custody of constitutional interpretation between the judiciary and the legislature in the early days of Nehru’s rule in India. But as should be obvious to anyone with even an elementary knowledge of modern constitutional law, this kind of constitutional thinking has been constitutional blasphemy in the late 20th and 21st centuries as it destroys constitutional judicial supremacy leading to a civil war between the judiciary and executive.

Pakistan’s political system has shown remarkable resilience and the ability for course correction.

The second dimension is subjugating or eliminating both de jure and de facto umpires, which could provide a check on Imran’s desire for one-party rule. Therefore, PTI rule involved efforts to seduce, subjugate and eliminate both de jure umpires (elected opposition parties and dissenting PTI members, the Supreme Court and the high courts, the Election Commission, NAB and other policing institutions) as well as de facto umpires (army, intelligence agencies and media). It failed miserably because even Pakistan’s military dictators were unsuccessful in achieving the objective of long-term one-party or one-institution rule in the country.

Imran’s legal strategy: On the foundational basis of this two-dimensional legal philosophy of executive constitutional interpretationalism and umpire subjugation, Imran’s PTI developed a three-stage strategy. Firstly, it engaged in constitutional frauds by twisting and subverting the words of the Constitution to every extent possible in order to ensure one-party rule — for example, by defeating the no-confidence motion using the legal fig leaf of Article 5 of the Constitution, or by having the Punjab governor challenge the election of the new chief minister, with mala fide intent, and misusing his immunity under Article 248 of the Constitution.

Secondly, it stirred up constitutional chaos by creating parallel constitutional authorities, for example, by reviving Usman Buzdar as chief minister in the presence of the newly elected provincial chief executive Hamza Shehbaz, or allegedly threatening to sack the army chief, or indulging in public critique of the current COAS in order to create divisions within the armed forces.

Read: Never wanted to bring my own army chief, says Imran

Thirdly, it attempted to manufacture a constitutional collapse through constitutional frauds and constitutional chaos, so that at best, the umpires would be willing to negotiate a deal with the PTI or at worst, not allow Imran’s opponents to take power, even if it meant the imposition of martial law. In short, in the recent constitutional crisis, the PTI’s legal-political strategy was to force an early election both at the national and the Punjab level.

Umpires beware: The key lesson for the political, military, judicial, bureaucratic, capitalist and media power elites, which rule Pakistan, from this recently averted constitutional collapse, is not to allow any institution, or party, or individual, to monopolise power in Pakistan and to ensure that both de jure and de facto umpires provide a balance of power and checks on such monopolisation.

As Dr Tariq Banuri, the current chairman of the Higher Education Commission, rightly observed in a conversation with me, the only safety valve in Pakistan against absolute long-term dictatorship of either military or civilian leaders, has been the presence of this balance of power among the power elites, and, as a consequence, even at the worst of times in our political history (for instance, the 1971 break-up or Zia’s Islamisation and martial law, or Musharraf’s dismissal and detention of judges), the Pakistani political system has shown remarkable resilience and the ability for course correction.

One can only hope that Pakistan will achieve political stability, and consequently, national prosperity. But one thing is clear: if this country is to be saved from complete political and constitutional collapse, the answer lies in both respecting the de jure constitutional balance of power as well as accepting the political realities of the de facto balance of power by all elements of the Pakistani power elite.

As far as the resolution of the power imbalance between de jure civilian and de facto military power structures is concerned, this is an incremental historical process and will require compromises by all elements of the power elite.

The writer is a lawyer.

Published in Dawn, May 7th, 2022

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