Why it matters

The writer is a lawyer of the Supreme Court. The views expressed in this column do not represent the views of his firm.

There have been plenty of false dawns before. There have even been plenty of instances when we have welcomed judicial saviours. Is this time any different? Or are we destined to be disappointed yet again.

Let me cut to the chase. No, the recent judgment striking down the deputy speaker’s ruling is not going to fix everything. No, the judiciary isn’t going to fix everything.

But, and this is important, it’s not the job of the judiciary to fix everything. It’s the job of the judiciary to decide, as per law, those disputes which are fairly within its competence. In this case, the judiciary did precisely that. And that is something worth celebrating.

At the same time, there are also reasons why this particular judgment means a bit more than others. I have two arguments in this regard, a ‘big picture’ argument, and a more modest argument.

Let me start with the more modest argument which pertains to the rejection of the PTI’s contention that the only solution was to have fresh elections.

At a practical level, the fresh elections argument was a non-starter once the ECP had stated that it needed a minimum of seven months. At the same time, Fawad Chaudhry and others had rightly noted that the opposition itself had been baying for months that Imran Khan should resign and hold fresh elections. There was also the 1989 precedent of the Supreme Court’s decision in Haji Saifullah’s case where General Zia’s dissolution of the Junejo-led assemblies had been held illegal and yet elections had been allowed to proceed. Even the learned attorney general who could not bring himself to defend the deputy speaker’s ruling, argued that fresh elections should be held and that nobody has a right to vote on a no-confidence motion.

To begin with, the Haji Saifullah reference was inappropriate for multiple reasons. In that instance, there had been an extended caretaker period following General Zia’s death and the fresh elections constituted a transition to civilian rule following more than a decade of military dictatorship. The Haji Saifullah case had also been filed many months after the dissolution of the assembly. In the deputy epeaker’s case, the Supreme Court had taken suo-motu notice the same day. Finally, it is a matter of record that General Mirza Aslam Beg later claimed to be responsible for the Supreme Court’s decision not to restore the wrongly dismissed government of Mr Junejo.

The attorney general’s law point was also invalid. We have a parliamentary system of representative democracy in which the foundational unit is not the voter, but the representative. The voter decides who will represent him/her for the next five years and the representatives decide who will lead them. The voters are bound by their choice for five years. The representatives are not. Instead, if the prime minister loses their confidence, they are entitled to replace him with a leader in whom they do have confidence. If the representatives change their mind about their leader, it is not a sign that democracy has failed: it is only a sign that the leader has failed.

This point was indirectly considered by the Supreme Court when Mian Nawaz Sharif challenged the dissolution of his government by Ghulam Ishaq Khan in 1993. One of the preliminary arguments raised then by the president’s lawyers was that the dissolution of parliament had not affected any of Mian Nawaz Sharif’s fundamental human rights since he had no right to form a government. The response from the Supreme Court was that the constitution guaranteed a right of association to form a political party, and that the right to form a political party necessarily implied a right to govern and to exercise executive power (if the party had the requisite seats).

The individual right of association and to form a political party therefore cannot be segregated from the right of an elected parliamentarian to decide who should be the prime minister. To deprive an elected MNA of the right to vote for (or against) a prime minister is no different than depriving a citizen of the right to vote. An elected representative therefore does indeed have a fundamental right to vote on a no-confidence motion.

Let me now pivot to the big picture argument.

One definition of law which I quite like is that: “Law is the endeavor of subjecting human conduct to the governance of rules.” Inherent in this definition is the assumption that rules are possible, and that it is further possible to judge human conduct on the basis of those rules.

In simpler words, there is a Right, there is a Wrong, and human beings are capable of identifying them.

At the same time, we now live in a post-truth, post-facts age of hyper-partisanship where the average voter (and certainly the average television viewer) either believes only his preferred anchors or believes that all journalists are liars. The problem here is that if nothing is true, then everything and anything can be believed to be true. All that matters is the ability to make even the most outlandish claim with a straight face.

By comparison, the judgment striking down the deputy speaker’s ruling is a reminder that despite the screaming pundits, it is still possible for reasonable people to tell an emperor that his clothes are missing. That there is a Right, that there is a Wrong, and that people are capable of distinguishing between them. That we still have Law in Pakistan.

One final point: lest we forget, the ostensible basis for the deputy speaker’s ruling is Imran Khan’s contention that a senior diplomat reported in writing that the United States was trying to oust the PTI government through a vote of no confidence. Till date, there is no evidence (even anecdotal) which connects what Donald Lu said with the motion for a vote of no-confidence. Nonetheless, this allegation cannot be left unexamined. It must be dragged out into broad daylight and it must be minutely scrutinized. As and when there is a new government, it must immediately declassify the letter (though this might require releasing the letter in a paraphrased form so as to address security concerns). The actual minutes of the NSC meeting must also be disclosed so that the underlying factual controversy is conclusively laid to rest.

I understand that there will be voices counselling to the contrary, arguing that if their communications are made public, our diplomats will be reluctant to put their actual sentiments into written form. But these are extraordinary times and these are extraordinary allegations. Ultimately, this country has a right to know what that letter said. More importantly, allegations of treachery are political dynamite. Unless this matter is resolved very quickly, the PTI will cry till kingdom come that it was stabbed in the back and our already heated politics will only grow more poisoned.

We have seen plenty of false dawns before. And yes, no one decision can rectify all that is wrong with Pakistan. But we still all gain when the constitution is successfully defended. And we must therefore beat on, boats against the stream.

Twitter: @laalshah