Questioning the conduct of members of the court or refusing to accept an adverse decision diminishes the final authority for resolution of disputes
o move forward, you need to look back. In 2017, the Supreme Court decided a petition filed by Imran Khan against the then prime minister, Nawaz Sharif. The petition was filed and heard under Article 184(3) of the constitution in the original jurisdiction of the Supreme Court. There was no oral evidence recorded on oath nor was there any cross examination of witnesses. This was not a trial in the classic sense.
Imran Khan won the case and Nawaz Sharif was disqualified. Segments of the media that were pro-Pakistan Tehreek-i-Insaf (PTI) hailed the independent Supreme Court. Imran Khan said after the verdict, “Our struggle proves that mighty people in our country can also be held accountable now”. One of the judges who sat on that bench was Justice Ijaz ul Ahsan.
On April 7, 2022, the judge was part of a bench which decided that the deputy speaker’s ruling was unconstitutional, and set aside the dissolution of the National Assembly. This time Imran Khan was the prime minister and the mighty person being held accountable. He didn’t like it. Nor did his supporters or cabinet colleagues.
When Nawaz Sharif was disqualified in 2017, an ill-advised campaign was launched by him seeking to undermine the decision to oust him. “Why was I removed?”, he thundered. The Supreme Court had made a finding in that case that Nawaz Sharif was not honest. It was argued by his supporters that this was a deprivation of his right to due process since there was no trial in the traditional sense and no right of appeal from the Supreme Court decision. Mr Sharif played the victim card and argued that a nation of 200 million cannot be held hostage to the whims of the few – i.e. the establishment, including the judges. At public rallies, he asked his supporters while referring to himself in the third person, “Will you stand by Nawaz Sharif in the revolution?”. A revolution was invited to undo the impact of a Supreme Court judgment.
The shoe, or boot, is now on the other foot. Imran Khan’s colleagues are describing the decision against them as a “judicial coup”. The judges being accused of a coup are the same who disqualified Nawaz Sharif and sanctified Imran Khan. Such statements undermine the credibility of those decisions as well.
The unanimous short order of the Supreme Court in the Deputy Speaker Ruling case (the “Order”) has been hailed by most legal experts as being sound in law. In the euphoria, some have celebrated the burial of the doctrine of necessity. It was, if anything, a reburial. The doctrine will not die. Expediency, like other vices, remains a constant temptation. It requires vigilance to ensure that it is not resurrected.
Whenever a party is upset with a decision, they should be urged to try and put themselves in the position of the aggrieved litigant who has been granted relief. It is not easy. Imran Khan and his supporters should try and imagine how they would have reacted if a Pakistan Muslim League-Nawaz (PML-N) speaker had behaved the way the deputy speaker did? Was it fair to just read out a prepared order simply on the basis of objections raised by a government minister?
Imran Khan’s colleagues are describing the decision against them as a “judicial coup”. The judges being accused of a coup are the same who disqualified Nawaz Sharif and sanctified Imran Khan. Such statements undermine the credibility of those decisions as well.
This was clearly a matter of public importance impacting fundamental rights. The fate of the government was at stake. The court took suo motu notice on a Sunday. Some suggest that they should have waited till Monday. Others have complained that equally important cases are left pending and not taken up on Sundays or at all. These are not substantive or reasonable objections. Delay is a problem with our judicial system. Lack of transparency or consistency as regards listing and disposal of cases is also an issue. These are criticisms highlighting genuine problems regarding the administration of justice. They are not reasonable objections to the decision itself. The urgency arose due to the time sensitive nature of the matter in dispute. The vote of no confidence needed to take place on Sunday under Article 95 of the constitution.
Once taken up urgently on a Sunday, those in support of the no confidence motion started complaining that the court was dragging its feet and enabling the government to create a new reality. The court needed to give a fair hearing to all affected parties. This was their constitutional right. That is what it tried to do in the days that ensued.
When the Order came on the fifth day of hearings, it not only set aside the deputy speaker’s ruling but also the dissolution. Given the polarised political atmosphere, it was clear that comprehensive directions needed to be given regarding the holding of the vote. PTI supporters criticised the order as an interference in parliamentary proceedings and said that this undermined the sovereignty of parliament and separation of powers.
The criticism is misguided. Parliament is not sovereign in Pakistan. It is subject to the constitution. It cannot legislate in derogation of fundamental rights. It cannot even amend the constitution in violation of its salient features. Parliamentary sovereignty is a feature of English constitutional law where there is no written constitution rendering legislative action subject to judicial review. It has no relevance in the Pakistan context.
The protection to legislative proceedings provided by Article 69 is limited. It does not protect unconstitutional actions or actions in bad faith. It only stops inquiries which question such proceedings on the grounds of irregularity of procedure. This was not a case of procedural irregularity. It was a case of violation of the constitution that resulted in disenfranchisement of members.
A US Supreme Court judge observed, “We are not final because we are infallible, but we are infallible only because we are final”. Disagreeing with a judgement is one thing. Questioning the conduct of members of the court or refusing to accept an adverse decision diminishes the final authority in our system for resolution of disputes. This will lead to instability and ultimately chaos. Most disputes before the courts are not political. If the highest court of the land is compromised, no one will accept adverse judicial decisions. The PTI is a movement founded to provide equal justice for all. Its leader constantly reminds us of the importance of accountability of the powerful, including rulers. Neither of these will be possible without a strong and independent judiciary which is respected by all stakeholders.
For the sake of the system and the constitution, the political leadership need to display grace and maturity when judicial decisions are given against them. If they undermine the court when they lose, it will come back to haunt them when they win.
The writer is an advocate of the Supreme Court. He can be reached at firstname.lastname@example.org