A near consensus unites Pakistani jurists and serious constitutional commentators that the order of the five-member bench of the Supreme Court that declared the ruling of the National Assembly Deputy Speaker in relation to the vote of no-confidence against the prime minister as unconstitutional, was essential if the rapidly deteriorating constitutional order of things was to remain intact. If someone tells you otherwise, they either don’t know the constitution or don’t care. But why then such a sigh of relief when it came? In other contexts, such an outcome would be deemed inevitable. Why not in Pakistan? One reason is that for many here, the opinion of someone whose life revolves around the constitution for over two decades counts for as much as the ramblings of a breakfast show host. Possibly less. How did we get here?
This is not meant to be a pompous suggestion that a constitution and its working or failures should not permeate popular discourses. Quite the contrary. It is public interest in and enthusiasm for constitutions that build the normative values and constitutional culture that run and protect them. But what happens when public understanding has been kept sparse or is being misled by a populist fever that feeds on irreverence for and defiance to an established constitutional framework that doesn’t suit its agenda?
History is replete with examples of self-serving populists who have fabricated an environment of doubt and chaos, called into question the fundamental edifice on which a society is built, and fashioned their politics on cynical and calculated castigation of the same. A fundamental prerequisite, however, for any meaningful and constructive societal discourse is an agreement on some background rules of the game. In modern times, constitutions have come to encapsulate the social contract, the mode of governance, and the nature of relationship within state institutions as well as their relationship with citizens. It lays out their respective roles, rights, and duties. One can question its components and efficacy at multiple levels but to question its very existence and purpose is tantamount to dragging one back to a pre-modern milieu where naked and arbitrary exercise of power can be justified and valorized on dubious claims. Constitutionalism is the modern and established global way to evolve and progress from those times.
Constitutions after all function not merely by the strength and exactitude of their words but the extent of legal decorum, respect for constitutionalism, and integrity that its operators display. When individuals in key positions or entire parties turn rogue, would tight jurisdictional boundaries apply? Can judicial review be ousted?
A most grievous challenge Pakistan faces today is rampant ignorance about why a constitution is vital for ordered existence in the 21st century; as also deep skepticism about whether such an order can work in Pakistan. This skepticism is of two types. There are those, me included, who have witnessed with horror how undermining the constitution has been a recurrent and unchecked exercise in our history. Whether through outright coups, dishonestly introduced constitutional provisions such as Article 58 (2)(b), or the Articles 62 and 63 piety clauses. Ouster of elected governments has been both abrupt (later patched up, contextualized, and justified through doctrines of revolutionary legality and necessity) as well as Machiavellian (such as the four dissolutions under Article 58 (2)(b)). It comes as no surprise that the constitutional mechanism for ousting a PM -- the no-confidence motion -- has hardly ever been used and never been successful. All these operations in the highly murky realm of the extra-constitutional have resulted not just in the politicization of judges but also the judicialization of politics, i.e., matters that ought to be resolved in the political arena end up in courts.
Then there are those who are also skeptical but theirs is the outcome of a rudderless and broad-brush angst at the given order of things -- those who are oblivious that constitutional journeys are always arduous ones, that politics is the vehicle, the tool and the arena to build constitutional democracies, that ground rules and adherence to such rules is crucial, and that without that all milieus flounder into anarchy, chaos or fascism. When society is deeply inequitable; education system in tatters; political discourses deliberately dumbed down; and few or obscure precedents of constitutional glory, the idea of a miraculous savior is simple and attractive. In contrast, constitutionalists are increasingly looked upon as obscurantists; scholars are an endangered species; and public intellectuals are branded and lambasted as partisan. In such a fevered milieu, a populist leader can find it very easy to play by the rules when it suits him and condemn them when it doesn’t. Such an intellectual and ideological vacuum lends itself to manipulation.
It is in this charged, highly polarized and frequently toxic context that Chief Justice Umar Ata Bandial sat down with his brother judges to judge something with consequences that ran deep and wide. The Deputy Speaker’s ruling not just allowed the PM a timely excuse to avoid the vote of no-confidence, it paved the way for him to advise the President to dissolve the assembly, raising some terrifying specters. Most notably, it created a precedence for future such votes to be blocked based on something akin to the international conspiracy theory that the PTI government is bandying to discredit Pakistan Democratic Movement (PDM) as traitors. Further, it rendered defunct the sole constitutional mechanism for removing a PM who has lost the confidence of the majority. In addition, it highlighted the need to define the level of immunity that the Speaker’s office enjoyed -- could he for instance simply bar any female members from attending future sessions based on some warped notion of Article 2A and get away with it? Constitutions after all function not merely by the strength and exactitude of their words but the extent of legal decorum, respect for constitutionalism, and integrity that its operators display. When individuals in key positions or entire parties turn rogue, would tight jurisdictional boundaries apply? Can judicial review be ousted?
Will the full judgment of the Supreme Court deconstruct the entire conspiracy theory premise? Will the unconstitutional acts have Article 6 implications arising from subversion of the constitution?
The Supreme Court, therefore, had to first navigate the jurisdictional question. Informed commentators never thought Article 69 precluded judicial intervention when something patently unconstitutional transpired. Thereafter, the Court could either make a narrow assessment of the legality of the Deputy Speaker’s ruling or a wider one of all related issues. Even a narrow assessment was, however, not a mechanical exercise of whether the gent crossed the t’s and dotted the i’s because it was inextricably linked to PTI’s international conspiracy theory and its insistence on a threat to national security. Hinging on the ruling was the dissolution of the assembly itself, since if the ruling was found illegal then the assembly was still intact and the PM had to face a vote of no-confidence, with the assembly being protected from dissolution during this process.
The bench very commendably went through the expected and logical steps of declaring the Deputy Speaker’s, the PM’s, and the President’s actions unconstitutional. What it hasn’t mentioned in its order is whether it will further deconstruct the entire conspiracy theory premise as also whether all these unconstitutional acts shall have Article 6 implications arising from subversion of the constitution. Full judgments often reveal much more than short orders. There are pro and con arguments for the Court to furnish a narrow and shallow judgment or a deep and wide one that looks at all issues.
For the time being, however, those of us who considered what has happened as par for the course are nevertheless highly relieved and grateful. The real challenge is how to inform and then inculcate confidence in the citizenry that constitutions can and do work, that the path is arduous, that we as a people are not specially accursed to not be able to make a constitution work, that we have been often hampered in this endeavor and it is mostly those who undermined constitutions throughout our history who continue to speak most vociferously against it, and that any knight in shining armor who says that constitutions don’t matter is nothing but an unrepentant despot.