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Mainstream, VOL LX No 16, New Delhi, April 9, 2022

Historic Judgement of the Pak Supreme Court in Defence of Democracy and Constitution Dismisses Law of Necessity often invoked to justify military coup | S N Sahu

Friday 8 April 2022, by S N Sahu

A historic unanimous judgement of a five-judge bench of the Pakistan Supreme Court delivered on 7 April has declared the ruling of the Deputy Speaker of the National Assembly disallowing an opposition-sponsored no-confidence motion against Prime Minister Imran Khan as unconstitutional. It also pronounced that the dissolution of the Assembly by the President is in contravention of the Constitution and held it null and void. It has ordered that the no-confidence motion against Prime Minister Khan be taken up in the Assembly by 9 April. And, if adopted by the required majority, the court has said a new Prime Minister should be elected.

The judgement in defence of the Constitution and democracy is exceptional. It sets a fine example in the subcontinent for parliamentary processes and procedures. Specifically for Pakistan, the order constitutes a historic triumph for a fragile democracy, often trampled upon by the army. Repeated military interventions have resulted in the tragic overthrow of elected Prime Ministers and suspensions of the Constitution.

The judgement is a refreshing departure from an unenviable record of justifying military coups and martial law by invoking the “law of necessity”. The same Supreme Court had legitimised successive military takeovers of the civilian government after ruthless military coups led by army chiefs. The justifications were anchored in the law of necessity, which wore a cloak of national interest. In brief, a military coup was held as necessary, so their constitutional validity remained beyond judicial scrutiny and challenge.

This time, during the hearing, the lawyers representing Prime Minister Imran Khan invoked the law of necessity before the Supreme Court. They argued that national interest would be best served if the no-confidence motion against Khan be dismissed , the Assembly dissolved, and elections held by employing the law of necessity. In this way, examining the constitutional validity of the Deputy Speaker’s decision became a legal test for the law of necessity. The bench rejected Khan’s arguments and essentially ruled that the national interest is best served by following the Constitution.

In an interview with Karan Thapar, Najam Sethi, the editor of the Friday Times newspaper of Pakistan, hoped the judgement would end the use of the law of necessity forever.

Judicial Coup

The ruling is a hopeful sign for democracy and the constitutional scheme of governance in Pakistan, where the military and civilian leadership have created insurmountable hurdles in the experiment with democracy. While the Pakistan media hailed the Supreme Court ruling, an aide of Khan described it as a “judicial coup” subverting parliamentary supremacy. Imran Khan himself, in his address to the nation, declared that he respected the Supreme Court; however, he appealed to people to hit the streets and urged them to protest against an “imported Government”.

So far, the Pakistan army has not commented on the developments. A key point is whether the Supreme Court would have dispensed with the law of necessity had the army taken over the regime through a military coup. Has the judgement been pronounced because a civilian leader recommended the dissolution of the Assembly, and the Deputy Speaker disallowed the no confidence motion?

This ruling stands in sharp contrast to the idea of guided democracy advocated by Field Marshall Ayub Khan, considered the father of military rule in Pakistan. He had introduced an indirect system of elections for electing representatives to Assemblies. His scheme dispensed with mass participation in the electoral process at every level of governance. His notions of democracy created the conditions for military coups, stifling democracy in Pakistan. And the Supreme Court justified these coups by invoking the law of necessity. Hopefully, the latest judgement will consign this law to the footnotes of history and let a healthy democracy emerge in Pakistan.

If Imran Khan gets ousted as Prime Minister after the no-confidence motion, he would be the first to lose power through the constitutional method. The appointment of his successor by the National Assembly would deepen the constitutional process for appointing a prime minister, at least without apparent intervention by the army. For that, we still need to wait and watch what happens next.

* (The author was Officer on Special Duty and Press Secretary to President of India K R Narayanan.)

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