By Iftekhar Ahmed Chowdhury in Dhaka Courier: Pakistan’s impossibly debonair and incredibly urbane cricketing star turned politician, Imran Khan, is a man of a myriad parts. Where English is spoken and cricket is played, he remains a hero. Time was when leading his team in many a Test match he caused blood to rapidly pulsate through Pakistani veins. In a nation buffeted by the vicissitudes of misfortune and thirsting for pride, he had fulfilled his people’s dream by winning them the ultimate prize in cricket, the World Cup. But then he switched games and went into politics. The fates, with him for a while, eventually withdrew their favor. He gambled with a tactic that was no more than a political stunt. Alas it failed, and the Courts in his country refused him relief. But this essay is not so much about him. It about the Courts that finally caused his fall. It is also about the role the judicial organ of the State has played along the inscrutable path of Pakistan’s constitutional and political destiny.
Since Pakistan’s inception, the higher courts, manned by senior Civil Servants and lawyers schooled in the best of the British legal tradition, have often been politically interventionist, with both liberal and illiberal consequences. An example of the first kind was a judgment (later overturned) of the Sindh High Court in 1954 that at the first instance initially favored Speaker Tamizuddin Ahmed when he challenged the annulment of the legislature by the Governor General Ghulam Mohammed; of the latter was the rulings of Chief Justice Munir Ahmed, the main propounder of the “doctrine of necessity” a principle that ruled the roost in Pakistan’s constitutional annals for a long time to come. The doctrine draws upon the writings of a maxim attributed to the medieval jurist Henry de Bracton. It is that, “that which is otherwise not lawful is made lawful by necessity”, rooted in the Latin legal dictum Salus Populi Suprema Lex, meaning “the wellbeing of the people is the supreme law”. This is also embodied in the ‘Second Treatise of Government’ of the philosopher John Locke, often viewed as a great champion of democratic pluralism. Incidentally the doctrine has been cited thereafter in several Courts in the British Commonwealth.
Using this liberal interpretation as a justification, Pakistani military rulers starting from Field Marshal Ayub Khan in 1958, continued to use the concept as a most useful legal tool (Justice Munir strengthened it to justify Ayub’s martial law in his judgment in the case of Dosso versus State where he ruled that a military take-over assumed sanction if there was public, even tacit). To the Supreme Court’s credit, it has attempted to live it down, initially modifying it circumspectly and thereafter boldly striking it down. In a major challenge to it though belatedly, Chief Justice Iftikhar Muhammad Chaudhry, on General Ziaul Huq’s take-over in the 1970s, ruled that no judge can offer any support to the acquisition of power by any unconstitutional functionary through modes other than envisaged in the Constitution. That was a great moral blow to any future unconstitutional change.
The death blow came recently. It happened last week when the Court headed by the newly appointed Chief Justice Umar Ata Bandial took suo moto cognizance of a controversial dismissal of a “no trust” motion by Deputy speaker Qasim Suri in the Pakistan National Assembly. It had been moved by the combined opposition against Imran Khan and required 272 in an Assembly of 372 members to pass. Because the ruling Coalition had broken down, the opposition had the numbers, but just about. But Suri, then acting for the Speaker, who belonged to Imran’s Tehreek-e-Insaaf party disallowed the motion just prior to voting on 3 April, on alleged grounds that some dissenting parliamentarians had been illegally influenced by a “foreign power”, that is, the United States. Thereafter President Arif Alvie dissolved the Assembly upon the Prime Minister’s advice and called for elections within 90 days. In public, Imran continued to insist on the allegations on US interference and trenchantly criticized what he termed as “treasonable actions” on part of his opponents, even though it placed him at odds with the seemingly all-powerful military and the Army Chief, General Qamar Bajwa.
After three days of mulling over the issues involved, the five-member bench headed by Bandial gave its “short order” ruling, upholding the supremacy of the Constitution at all costs. It also underscored the paramount role of the judiciary in protecting the nation’s basic law. The judges declared the Deputy Speakers dismissal of the motion as “unconstitutional”, as also the consequent dissolution of the Assembly by the President on the Prime Minister’s advice. It reinstated the assembly to status quo ante as on 3 April and ordered that nothing – no action of the President, the Prime Minister or the Speaker- could impede the process of voting and the election of the next Prime Minister which would have to happen by 9 April. When the Speaker, apparently influenced by Imran, appeared to demur, Bandial physically went to the Court at dead of night s presumably to prepare for an eventuality in which he might have had to take anti “contempt of court measures” against government supporters! Consequently, the voting was held as per court order, Imran and the Speaker resigned, and despite the turmoil Pakistan went through a democratic political change, albeit after some hiccups.
The “short order” of the judges drove what was possibly the last nail in the coffin of the doctrine of necessity in Pakistan. It was based on the theoretical perception that nothing should necessitate any action contrary to the tenets of the Constitution, in which the “well- being” of the people resided, and which reflected the people’s choice and will. The Court was reaching out to the highest source of law enshrined in the Latin adage Vox Populi Vox Dei, meaning “the voice of the people is the voice of God”. It was supposedly enunciated as an effective political maxim in English common law as early as in1327 AD by Walter Reynolds, Archbishop of Canterbury, who used it in a sermon bringing charges against King Edward 11.
While the judges ruling will help correct a practice that had strayed from the original principles of liberal constitutional law, it will not end the woes of Pakistan. Those had resulted from concatenation of circumstances, political, economic, strategic, and historical. Pakistan has a new Prime Minister in Shahbaz Sharif, an experienced hand in governance. As a mark of protest, Imran took his party out of the Assembly and boycotted the election of his successor. The new government in place will face daunting challenges with the elections due in around a year’s time, a broken economy to fix, and a stubborn opponent to resist in the streets. Imran had lingered on the wicket, a tad too long after he was obviously out, which was not quite cricket. But he has the tenacity of a Robert Bruce and could well return to play another innings. But for now, the people of this nuclear weapon state and their neighbors, are heaving a sigh of relief as the immediate political imbroglio somewhat eases. Also, because from the chaos has emerged a strong institution, a guardian of democracy in a turbulent polity, the judiciary, which has established its authority sufficiently to be able to demonstrate Roma locuta, Causa finita, Rome has spoken, the case is finished!
Dr Iftekhar Ahmed Chowdhury is the Honorary Fellow at the Institute of South Asia Studies, NUS. He is a former Foreign Advisor (Foreign Minister) of Bangladesh and President and Distinguished Fellow of Cosmos Foundation. He can be reached at: isasiac @nus.edu.sg