Explained | Pakistan’s constitutional crisis ends

How has the Supreme Court played a deciding role in practically every Prime Minister’s tenure in the last few decades?

April 10, 2022 04:25 am | Updated May 17, 2022 03:07 pm IST

Tensions high: Paramilitary soldiers stand guard on a road leading to parliament building in Pakistan on April 9, 2022.

Tensions high: Paramilitary soldiers stand guard on a road leading to parliament building in Pakistan on April 9, 2022. | Photo Credit: REUTERS

The story so far: With his actions over the past week, Pakistan’s Prime Minister Imran Khan, and former pace bowler and cricket captain, has given the term “slog overs” a new meaning, pulling surprise after surprise in order to stave off the inevitable: the end of his government. What was meant to be the final hour, the no-confidence motion brought by Opposition parties on April 3, ended up becoming just the first chapter in a week of dramas, that began when Pakistan Tehreek-e-Insaaf (PTI) leaders stood up in the National Assembly, and asked the Deputy Speaker Muhammad Qasim Khan Suri, presiding that day, to reject the no-trust motion on the grounds that it was authored through a “foreign conspiracy”.

What did the court rule?

The Deputy speaker complied, and Mr. Khan then tried to ensure that rather than the Opposition bringing another no-trust motion, he would resign and push through the dissolution of the Pakistani assembly, with an order from President Arif Alvi to that effect. Four days later, ruling on an appeal from the combined opposition, the Supreme Court struck down all the actions of April 3, calling them “unconstitutional and illegal”, reinstating Mr. Khan, and the National Assembly, and ordering them to go through with the trust vote as originally planned. Mr. Khan and his party, the PTI, lost. Each side insisted their actions had been decided by Pakistan’s Constitution, adopted in 1973. 

What did it say on the ploy used by the government?

In an eight-page judgment on April 7, the Supreme Court said the Deputy Speaker’s decision to dismiss the no-trust motion; Mr. Khan’s move to seek dissolution of the National Assembly without seeking a vote; President Alvi’s decision to dissolve the Assembly, appoint a “Caretaker Prime Minister” of Mr. Khan’s choice and order fresh elections, were all “contrary to the Constitution and of no legal effect”, and set them aside. It added that “any order by the Prime Minister and the President shall be subject to the order of this Court”, establishing its supremacy over all other institutions, and in an unusual move, reinstated the Prime Minister who had willingly resigned from office, and reconvened the disbanded Assembly to vote on the no-trust motion. The Supreme Court also consulted with the Election Commission, which made it clear it could not hold elections for another four to six months, while under the Constitution, a caretaker Prime Minister, who oversees elections, cannot be in office for more than three months. Legal experts said the Supreme Court dispensed with the constitutional term “doctrine of necessity” which the PTI government had used to explain its actions. 

What is the ‘doctrine of necessity’?

The ‘doctrine of necessity’, proposed by constitutional scholars in France and the U.K., validates an action “which is otherwise not lawful [but] is made lawful by necessity”, and has often been used through Pakistan’s democratic history. It was first used in 1954, after the-then Governor General of Pakistan, Ghulam Mohammad, dismissed the Constituent Assembly, an act that was upheld by the Supreme Court a year later. However, after its regular abuse and misuse in Pakistan to validate unconstitutional acts, about 100 scholars and legal experts wrote to Pakistan’s Chief Justice, Justice Umar Ata Bandial, on April 6, a day before the verdict, appealing that the doctrine must be “buried”.  

Is this the first time the Supreme Court has been asked to adjudicate such a case?

The Supreme Court of Pakistan has often been asked to intervene in cases of constitutional friction, particularly given that the all-powerful military establishment has also sought its backing for summary dismissals of governments and coups in the past. Both in 1977, and in 1999/2000, the Pakistani Supreme Court upheld the military coups by General Zia-ul-Haq against Prime Minister Zulfiqar Ali Bhutto and General Pervez Musharraf against Prime Minister Nawaz Sharif respectively even though it had held in favour of Mr. Sharif when he was dismissed by civilian President Ghulam Ishaq Khan in 1993. At times, it was the Supreme Court that helped install a regime -- like General Musharraf's -- and was also instrumental in its removal, as Chief Justice Ifthikar Ahmed Chaudhury did in 2008.

Editorial | Pace without pause: On Imran Khan’s politics

In another case involving Mr. Sharif, whose brother Shehbaz Sharif is the Opposition’s candidate for PM now, the Supreme Court disqualified Nawaz Sharif in 2017 from holding public office over the “Panama Papers” case, forcing Mr. Sharif to step down. In 2012, the Supreme Court disqualified Pakistan Peoples Party Prime Minister Yousuf Raza Gilani, over a contempt case. Given that no Pakistani Prime Minister has completed the full five-year team of an elected Assembly, the Supreme Court has had a say in practically every Prime Minister’s tenure. On many occasions, including the present, the Supreme Court has been accused of attempting a “judicial coup”.

Worldview with Suhasini Haidar | Pakistan Political Turmoil

What happens next?

It is clear that Imran Khan, who often boasted he would play till the “last ball of the last over”, stretched his innings even into a few ‘super overs’ before being forced out in a vote that took place post midnight on Saturday. Thirty years ago, in what was described as his finest hour, Mr. Khan stepped down as Pakistan’s cricket captain, after delivering the country its first World Cup win. Accused now of being an “Ain Shikanee” or “Constitution breaker” by the Opposition, it would be hard to argue that his actions this week covers the now 69-year-old Khan in similar glory.  

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