When Paul Keating, the former prime minister of Australia, built on the four successive election victories of his legendary predecessor, Bob Hawke, and led the Labour Party to a record fifth election win in 1993, he described the achievement in the following words: “This is the sweetest victory of all. This is a victory for the true believers; the people who, in difficult times, have kept the faith.”
On the historic evening of 7th April, I was reminded of Keating’s words when the Supreme Court’s epoch-making decision reached my ears, which have been starved for years from hearing any welcome news on the crucial questions of defence of the constitution and the rule of law.
The Supreme Court’s landmark judgment is not just the victory of the parliamentary opposition in the case at hand; rather it denotes a far higher principle, namely the unalloyed triumph of the constitution over those who would seek to subvert it. It is for this latter reason that today there is good cheer and joy in the hearts of those of us who have kept the faith in the supremacy of the constitution, the sanctity of the rule of law and the strength of parliamentary democracy.
The Bandial Court has truly done us proud. The resounding judgment is noteworthy on many counts: first, it has firmly dug the doctrine of necessity into a deep grave, where hopefully it will remain interred forever; second, the supremacy of the constitution has been upheld in no uncertain terms; third, a clear check of judicial review has been imposed on the notion that the Speaker of the National Assembly has unbridled authority in the exercise of his powers; and, last but not least, the court has spoken unanimously, thus leaving no doubt about the certainty and forcefulness of their decision.
But, in addition to the above points, the court’s judgment also needs to be seen in the context of the twin principles of the rule of law and rule by law. A brief explanation of these concepts is in order.
The rule of law is a broad term, but for the purposes of the present subject it can be said to refer to the precept that no ruler is above the constraints and limitations of the constitution. If a ruler undertakes capricious and arbitrary governance and seeks to exceed the constitutional limits placed on him/her, the principle of the rule, i.e. equality before law, comes into play and the courts should hold the ruler accountable.
Rule by law is the polar opposite of the rule of law. The former principle holds that the law is not equal for all, and the executive authority of the land will not be held accountable in the same manner as a common citizen of the state is held to account. Basically there is no equality before law in a state which is ruled by law. The best example of states ruled by law could be found in the days of colonialism, when the colonial power was not subservient to the laws of the colony.
Pakistan is a state whose constitution mandates the essential ingredient of the rule of law i.e. equality before law (Article 25). However, in practice, sadly the upholding of the rule of law in Pakistan has been a tradition which is honoured more in the breach than in the observance. Various governments in Pakistan have ridden roughshod over the rule of law, but the real tragedy has been the repeated failure of the Supreme Court to check these infractions.
There is a litany of judicial let-downs. The sorry tradition was set in the Tamizuddin Khan case, when the then Federal Court, led by a famous jurist, Justice Munir, relied on a legal technicality to overturn the Sindh Chief Court’s courageous and unanimous decision to restore the Constituent Assembly which had been illegally dissolved by Governor General Ghulam Mohammed. The rule of law, i.e. the need to check the capricious exercise of power by Ghulam Mohammed, never figured in the Federal Court’s convoluted reasoning, which was in favour of the powerful governor general and against the will of the people’s representatives.
In subsequent major constitutional cases, the top court was often found wanting, save in the seminal Nawaz Sharif case of 1993, when for the first and, until 7 April 2022, the only time an unconstitutionally dissolved National Assembly was restored to existence. The landmark 10-1 judgment of the Supreme Court in that case had struck a major blow for the sanctity of the constitution and for the parliamentary democracy. However, in some crucial subsequent cases, such as the dismissal of Benazir Bhutto’s government in 1996 and the military take-over of 1999, the underlying constitutional deviations were again authenticated by the Supreme Court at the altar of the doctrine of necessity and the rule of law was not upheld.
Now the Bandial Court has comprehensively swept aside the legacy of these Aegean stables by setting aside the gross constitutional deviations that were perpetrated by Imran Khan & Co. on 3 April. In acting as faithful guardians and custodians of the constitution, Justice Bandial and his four brother judges have firmly established that Pakistan shall be a state governed by the rule of law and not a state which is ruled by law. This is truly one of the sweetest facets of the historic judgment and one sincerely hopes that it will augur well for the nation’s future constitutional journey.
Epilogue: On March 25, 1992, Imran Khan led the Pakistan team to victory in the ICC Cricket World Cup and carved a place of honour in the hearts of the nation. A little over 30 years later, the prime minister has led his team in the perpetration of gross constitutional violations, which have been strikingly overturned by the Supreme Court. By blotting his escutcheon in such a blatant manner, Imran Khan has exposed himself to the devastating indictment of history.