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The final umpire
WHEN Imran Khan was the prime minister he tried to stop the vote of no confidence against him through a ruling by the deputy Speaker of the National Assembly. The Supreme Court took suo motu notice. The PML-N and PPP-P also petitioned the Supreme Court.
The court set aside a ruling of the deputy Speaker and also declared unlawful Imran Khan’s attempt to dissolve the National Assembly. All of this was done through a short order.
The short order of the court gave detailed directions to the Speaker regarding the holding of the vote of no-confidence. It was criticised at the time by supporters of the PTI as being a case of judicial overreach. How could the court direct an independent constitutional organ like the legislature regarding the manner in which it was to undertake its internal affairs? Ultimately, the short order was implemented. The detailed reasons came much later. Mr Imran Khan was removed. We went back to Purana Pakistan.
The five-member bench of the court that gave this decision was headed by chief justice Umar Ata Bandial. It also comprised justices Ijazul Ahsan and Munib Akhtar. The decision by a bench which included these three judges paved the way for the removal of the PTI government and for the PDM to take charge. They were hailed by supporters of the PDM and by others as heroes for upholding the Constitution.
For these same supporters, the judicial heroes later became villains. This reflects an unfortunate tendency amongst litigants in our legal landscape. When a judge or court endorses their perspective, they are hailed as brilliant independent jurists. When a decision comes against them, the decision is characterised as unconstitutional or unlawful and aspersions are cast on the character or motives of the judge. What is conspicuously lacking both on the part of the government and litigants generally is a trait which underpins any functioning system: a graceful acceptance of defeat.
For the same supporters, the judicial heroes later became villains. This reflects an unfortunate tendency.
Where humans interact, disputes are inevitable. Mechanisms have been evolved for resolution of disputes. In a cricket match, the decision of the umpire is final. If either party refuses to accept the umpire’s final call, chaos ensues and there can be no match. Two critical elements of a fair dispute resolution process are that, first, the rules must be clear prior to the start of the game.
Second, the umpire who is to apply these rules should be independent and trusted by both sides. In cricket, it was Imran Khan who was at the forefront of the demand for neutral umpires. In his subsequent political life, he appeared through some of his rhetoric to have developed an antipathy to neutrality in situations where it was essential.
The Constitution sets out the rules that are to apply in the case of the government of our country. Under Article 5, every citizen has a duty to obey the Constitution and the law. Generals, judges and legislators each assume an additional obligation. They swear an oath as prescribed by the Constitution. This oath of office requires them to uphold the Constitution. Swearing an oath is a solemn act, invoking a divine witness, regarding one’s future conduct.
The Constitution establishes courts for the resolution of disputes. The Supreme Court is the apex court. It has the final say. For the constitutional system to function, its orders must be implemented. Litigants do not have the option of refusing to implement court orders on the basis that they view them as unconstitutional or wrong.
The Speaker of the National Assembly, although a constitutional office with immunity for certain actions, did not have the option in the vote of no confidence case to refuse to implement a court order. Neither did the then prime minister Yousuf Raza Gilani when he was required to write to the Swiss authorities in connection with certain bank accounts. In the case of reserved seats, the Election Commission is similarly placed. It must implement the court order. Any other view results in the collapse of the constitutional system.
Two arguments are presented to counter this perspective. First, it is submitted that parliament is sovereign and the supreme lawmaking body. Therefore, judicial interpretation or review which undermines parliament undermines the will of the people. This view is wrong. The Constitution embodies the will of the people as a historic community and was adopted by the Constituent Assembly which was an assembly elected for this purpose. The Constitution expressly contemplates judicial review of legislation. To this extent, parliament is not sovereign.
As justice Jawwad Khawaja explains in his book, we must rid ourselves of alien concepts like “parliamentary sovereignty” which are not part of our constitutional framework. By enforcing the Constitution and striking down legislation or other unlawful actions on the part of constitutional bodies, the courts are in fact giving effect to the will of the people as embodied in the Constitution.
Second, a contextual argument is presented based on past Supreme Court decisions which have haunted us as a nation. It is submitted that since the Supreme Court made such terrible mistakes in the past, it cannot insist on compliance of its orders. This is an argument for judicial humility rather than non-compliance of court orders. We cannot be a hostage to our past. The Supreme Court has corrected some of its past errors. This is to be welcomed. Other institutions and departments must also introspect. We must not let our troubled past define and ruin our future.
Where there are disputes and a prescribed process is followed for their resolution, the losing party must learn to gracefully accept defeat and move on. When the defeated start undermining the status as opposed to the reasoning of majority Supreme Court decisions, we all suffer. You can disagree with passion.
For the constitutional order to function, you must comply. Today’s victors may be tomorrow’s losers. If we are to prosper, it is the constitutional scheme that must be protected. The decision of the final umpire must be implemented.
The writer is an advocate of the Supreme Court.
Published in Dawn, August 24th, 2024
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