Pakistan: Role of SC in facilitating derailment of democracy, Constitution indefensible – claim top court judge


ISLAMABAD: Justice Athar Minallah underscored the significance of civil supremacy and protection of democracy, stating the role of the Supreme Court in facilitating the derailment of democracy and the Constitution is indefensible.

Addressing the London School of Economics (LSE), Minallah said “The absence of civil supremacy has created a persistent tension and the Constitution has been subverted since the country has not been governed there under”.

Delivering a speech on the topic ‘Unpacking Pakistan’s Constitutional crisis; The Role of the Supreme Court’, the judge said: “The Supreme Court was perceived to have been involved in political engineering prior to the general elections of 2018 which led to the formation of a weak civilian government and it could not last for more than three years. This period manifested a distinct form of constitutional crisis; the governance was perceived as hybrid in nature i.e jointly managed by the elected representatives and the hierarchy of the army, a fact later publically affirmed by the then prime minister”

He added that the leader of the House refused to acknowledge the legitimacy of the leader of the opposition and in order to frustrate the vote of no confidence, the deputy speaker attempted to dissolve the NA.

“The Supreme Court intervened by taking suo moto notice and subsequently the vote of confidence went through pursuant to the unanimous judgment of the Supreme Court. Instead of sitting on the opposition benches, the Leader of the House, who had been removed through the vote of confidence, decided to resign along with other elected representatives belonging to the political party. The constitutional crisis was aggravated when two provincial legislatures were prematurely dissolved pursuant to the decision taken by the political party. The Lahore High Court handed down its judgment but while its implementation was in the process the Supreme Court intervened. Through two separate judgments, the Supreme Court had fixed dates for the holding of general elections. The judgments were not implemented and no attempt was made either by the Supreme Court or the interested parties to have them enforced,” the judge said.

Minallah further stated “The Lahore High Court (LHC) handed down its judgment but while its implementation was in the process the apex court intervened. Through two separate judgments the top court had fixed dates for the holding of general elections. The judgments were not implemented and no attempt was made either by the SC or the interested parties to have them enforced”.

He added “The SC allowed its authority to be eroded. The Constitution was violated repeatedly and no one was held accountable. The elections could not be held within the ninety days prescribed under the Constitution”.

The judge also mentioned that the political leaders raise voices in support of restoring civil supremacy only when they are not in power, stating that when in power they willingly allow the Constitution to be subverted with impunity by compromising civilian supremacy.

“The Constitutional crisis will continue till the Constitution is made workable by restoring its foundational principle of civil supremacy. Democracy would not have been derailed and the usurpers would not have ruled for half of this nation’s history if they were not legitimised by the SC, nor would the people have suffered,” Minallah said.

Highlighting the situation in the past, Minallah said that for more than seven decades civilian supremacy has been suppressed but this model has merely created opportunities for elite capture to become more entrenched, adding that the people have been denied their inalienable right to govern the country and carve its destiny and that as a nation we are running out of time and the doctrines must give way for the country to be governed under the Constitution in conformity with its foundational principle of civilian supremacy.

He added that the erosion of civilian supremacy has created absolute impunity against derailment of the Constitution and, as judges, we ought to accept that we are responsible. “Constitutional violations and deprivation of freedoms and constitutional rights are intolerable. Those who deprive the citizens of their constitutional rights must be held to account”, said Minallah.

The top court judge mentioned that the panacea to the miseries and hardships faced by the people of Pakistan solely rests on upholding the Constitution and making the authorities answerable for the wrongful exercise of public power and transgression.

“The ruling elites have experimented and have governed the country for 76 years by adopting different models, from dictatorships to hybrid models but have not given the people a chance to rule and govern by and under the Constitution. History beseeches us that our ruling elites must now accept that a Pakistan governed in violation of democratic constitutionalism expressly envisaged under the Constitution will only perpetuate the constitutional crisis and inevitably further add to the instability and erosion of rule of law. Refusing to acknowledge the reality is no more an option. Your generation is not only the hope but an assurance for restoring the status of Pakistan amongst the comity of nations which it deserves,” said Justice Minallah.

In concluding remarks he stated that the governance of the country, for the last 76 years, has been hostage to the ‘doctrines’ conceived by individuals who were trained in the art of war, adding that these ‘doctrines’ gave us the culture of drugs, Kalashnikovs, violence and terrorism.

“They changed the moral fabric of our society. Pride was taken in adopting the despicable phenomenon of enforced disappearances as a state policy. The governance based on ‘doctrines’ has made 95 million citizens suffer by living below the poverty line, a ticking bomb of population growth that threatens the country. The doctrines could not stop the exponential increase in the number of children who are stunted nor help in preventing the deep human capital crisis,” said the judge.

He added that judges were restored in March 2009 but the role of the restored judiciary in encroaching upon the domain of the legislature and the executive was contrary to the aims and purpose of the historic lawyers’ movement, stating that the Parliament’s authority and democratic principles were undermined and civil supremacy was eroded.

“The legitimised usurper alone was tried and convicted by a special court while his collaborators who had granted him legitimacy were pardoned by the SC. Procuring attendance of the alleged usurper by the special court was frustrated and he was convicted and sentenced in absentia. The function of the offence of high treason to deter serious violations of the Constitution stood frustrated.”