As Pakistan’s political crisis deepens, the Supreme Court (SC) decided to take a hand but its interim order has left more confusion than before. Saying in its ruling on Friday that any extra-constitutional step would be deemed a violation of the constitution and equivalent to high treason, the SC has raised the stakes of the confrontation without clarifying what it exactly means by ‘extra-constitutional’. The court was petitioned to restrain any institution or government body from acting in an unconstitutional manner, but the question remains of why it sought to hear a petition of this nature in the first place. The institutions of government and state are there precisely to prevent others from acting unconstitutionally. If they need to be restrained then who is going to do it? By issuing a pre-emptive judgment against institutions that may or may not seek to subvert the constitution, the court not only engages in a logical fallacy, it also presumes that such a sentiment exists when no facts substantiate the claim. The law, it should be remembered, deals in facts not perceptions. What happens when an institution so decried simply says it has no such plans? If it does, will it admit them and will it care if it plans to overturn the Constitution in the first place? The army, for example, is sworn to defend and uphold the Constitution, but that did not stop military dictators from taking power, or the courts from retroactively legitimising their takeovers. Without the executive authority to enforce such orders, the SC undermines its position as a neutral body dedicated to interpreting constitutional jurisprudence. Similar to the Lahore High Court’s (LHC’s) judgement earlier this week, the SC endeavoured to act as a political arm of the state, determining on its own what is good for the country. Whether it intends to or not, it will be seen as taking political sides, shaking the faith people have reinvested in it over the last few years. This judicial mindset is a hangover from the judicial activism of Chief Justice Iftikhar Mohammad Chaudhry when the judiciary took it upon itself to interfere in political matters under the aegis of suo motu action, but it also reflects an unreasonable expectation on the part of politicians to assume the courts can solve all problems.
When petitioned to stop the marches, the LHC in its judgement noted it had no authority to restrain individuals from exercising their right to protest, or to order the government to negotiate, but it did tell the Pakistan Tehreek-e-Insaaf (PTI) and Pakistan Awami Tehreek (PAT) to not hold ‘unconstitutional marches’, by which it presumably meant the marches must stay peaceful, and marchers must not break the law by taking it into their own hands or creating loss of life and property. Imran Khan and Tahirul Qadri duly promised they would ensure as much and proceeded with their plans, though in this case the judgement appeared to have a restraining effect on them. The LHC also stuck its neck out by saying that Imran Khan and Tahirul Qadri’s demands were ‘unconstitutional’, but as Senator Aitzaz Ahsan has pointed out, demanding resignations is the substance of democratic politics; contrarily, it is Imran Khan’s method of achieving his goal that is extra-constitutional since the Constitution specifies a process to remove the government through parliament. Ordinary citizens can protest within the law but the government is under no obligation to listen. It is obligated when parliament votes against it. And while the PTI’s demands have varied from electoral reform to the prime minister’s resignation, Tahirul Qadri is arguably making threats, not demands, and their substance is overthrowing not just the government but parliament and the constitutional order, which potentially constitutes sedition. If the government decides to move against him it is the courts’ duty to decide the case, but not to term his statements unconstitutional before then. Instead of telling protestors to behave or moderate their demands in accordance with laws that already exist, the court should act with restraint and prepare for any legalities that may ensue if the government and protestors come to an accommodation. That is where its strength lies.
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