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Five takeaways from SC’s landmark judgment

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By Safi Ghouri


I’m writing this because I am getting a lot of questions regarding Thursday’s landmark judgment by the Supreme Court and what I made of it. In my opinion this judgment is one of the wisest and bravest orders by our SC that has solved massive problems that Pakistan is facing.

Here are my 5 reasons this unanimous judgment has made history:

Due consultation

The singular most remarkable feature of the judgment is how it was crafted with direct input from the military establishment on a constitutional matter, thereby forging a relationship of mutual respect between the institutions and setting boundaries.  It is no secret that both the judiciary and military have been at loggerheads for most of our history but with this judgment both institutions are now on the same page on the all-important issue of national security versus law. The entire crisis revolved around a ‘foreign threat’ which is constitutionally a subject of the military. The military itself kept quiet and bowed its head to the word of the constitution whereas the SC honored the military by consulting them. I am not at liberty to write several other undisclosed facts, but the great news is that the institutions have never been closer.

Unwise ‘surprise’

Almost the entire legal community of Pakistan and even PTI members stood up against the several illegalities committed in a rare unison. There was consensus amongst the lawyers that such a ‘surprise’ was unconstitutional and unwise. PTI’s own appointed AG refused to defend PTI and their own deputy AG resigned in protest. Furthermore, their own lawyers admitted before the SC that whereas illegality was committed but they should move towards elections in the interest of the country. Even more appreciable is the fact that PTI appointed speaker Asad Qaiser had refused to dismiss the VNC and thereafter deputy speaker even though he dismissed it, did not sign the ruling. Another appreciable feedback was given to the SC by the defense secretary who informed that the National Security Advisor Moeed Yusuf and the Foreign Minister Shah Mehmood did not attend the meeting on this ‘foreign threat’. Furthermore, the defense secretary clarified that none of the military chiefs signed the minutes of the NSC. The foreign secretary later issued a demarche but not on the instructions of the NSC, once again proving that the military had ignored Khan’s dangerous claims of being victimized by a global power. In fact General Bajwa actively countered this assertion by calling USA our ally, our friend and invited them to make investments in Pakistan.

Clarity

Whereas not a new precedent, it’s a great thing that the SC clarified the powers of the speaker. PTI’s sole defense was that the constitution says that the speaker’s decision cannot be challenged in a court. Would PTI think it’s fair if a speaker disallows, for instance, Pathans from voting saying he’s decided they cannot be trusted? And then after barring all Pathans the speaker cannot even be challenged? The NA rules clarify what kind of powers a speaker has and those do not include making any judicial decisions. In this case the speaker presumed that there was a ‘foreign threat’ and even admitted that he’s not seen any documents to prove them but believes Imran Khan. This is a judicial decision, not a procedural decision by the speaker since he is talking about a case and its likely outcomes. Interestingly he even mentions in his ruling that the case is to be investigated vide a committee. There is plenty of case law on this matter wherein previously courts have dismissed such illegal actions of speakers.

Traitor politics busted

This judgment puts an end to the politics of ‘traitor opposition’ that has long plagued our country. The easiest way to mislead Pakistanis is misuse their love for Islam and hatred for the USA. It’s a tried and tested formula to cling to power, used by many before. Khan received a letter on the 7th from his ambassador and the VNC was filed on the 8th but IK bought it before the NSC on the 24th after MQM left him. Instead of immediately sharing this massive ‘threat’ to Pakistan with the armed forces, he waited for around 17 days to use it as a trump card against his political opponents and thereafter connected the events of 7th and 8th in his own head. The USA, whatever you may think of it, is our biggest export partner and NATO accounts for over 75% of our exports. In addition, the USA runs the same IMF that Khan is begging from every two months and even gifted our state bank to them. Suddenly these same countries were out to dismantle him because his own MNAs were abandoning him. Khan has everyone convinced that all other parties have been brought out by the USA, along with the judiciary, the armed forces and the media. By punishing someone who called everyone who doesn’t agree a traitor, the SC has set a much-needed precedent so some civility can be bought into politics.

Doctrine of necessity buried

The most important aspect of this judgment is the burying of the doctrine of necessity. The Doctrine of Necessity was created by the Supreme Court to justify martial laws and abrogation of the constitution time and again, which has led to considerable instability in Pakistan and a general lack of trust in the courts and the political process. The doctrine justified previous legal violations by stating that sometimes illegal actions are necessary for the best interest of the country. Many leaders in the past have used this to break laws and get away with it and this time once again PTI lawyers argued the same legal doctrine to justify their illegality. However, in an all-important move the SC has laid to rest the doctrine of necessity as a shameful relic of our past and decided that no one will be allowed to break law under the excuse of ‘necessity’. Law shall reign supreme and the constitution shall be held above individual persons.

Anyone who knows me knows that I dislike and distrust PDM tremendously. But I am willing to put my feelings for some particular leaders aside because I believe that the larger interest of Pakistan is served by the rule of law and respect for institutions over individuals. The detailed order on this judgment is still not out but I am certain it will change Pakistan’s history for the better and have far reaching impacts into our future.

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