Triumph of the Constitution

Laws and justice go hand in hand with human existence. In the Middle Ages, the decrees of kings were the law of the kingdom, but the laws were limited to the subjects only. The king himself was an exception. Then in 1215, the Magna Carta was written down – emphasising the formulation and enforcement of public laws – and led to laws such as the Bill of Rights in 1689 that granted public and parliamentary rights and gradually changed the world order.

The secret of the strength of the ancient kingdoms was that there was always talk of justice and the rule of law. When the subcontinent became part of the colonial system, the British, with their strong administrative power and proper legal and judicial system, established a solid state writ and ensured good governance. States were required by law to be equal before the court, and the law would apply equally to all, regardless of colour, race or rank. Bingham writes in his book Rule of Law that if the state has eight things – easy access to law, equality before the law, proper use of legal powers, avoidance of arbitrary use of discretion, transparency in cases, resolution of disputes, supremacy of human rights and observance of international law – the rule of law would be much better. The role of judiciary in ensuring the criterion of the rule of law is better than that of other institutions, as it interprets the constitution and is the guardian of the law. Winston Churchill asked the British during the devastation of World War II if the courts were doing their job. The answer was yes. He then said, “Then there is nothing to worry about.” Therefore, in any state, the people and the ruler have a relationship of trust and confidence with judiciary and this relationship is the basis of the rule of law.

Political means alone are useful for a solution to political problems, but if the parties agree on a solution based on the law, it could be a good omen not only for the country and the nation but also for democratic and constitutional institutions. Recently, the Supreme Court annulled the ruling of National Assembly Deputy Speaker Qasim Suri and ordered things back to the April 3 position. By a 5-0 decision, the top court declared the dissolution of the assembly unconstitutional and ordered completing the proceedings of the no-confidence motion against Prime Minister Imran Khan by 10:30pm on April 9. The court verdict is strictly in accordance with the law and the Constitution that culminates in the triumph of democracy in the country.

This is not the first time in the country’s history that judiciary has guided the government and the nation in the light of law and the Constitution. In 1954, the first Constituent Assembly was dissolved by Governor General Ghulam Muhammad, and the Supreme Court had been instrumental in bringing the country out of the constitutional crisis that ensued. It happened at a time when the Constituent Assembly had – after seven years of hard work – completed the drafting of the Constitution and only required the Assembly to give a formal approval before its implementation. The dissolution of the Assembly on October 24, 1954 was challenged by Maulvi Tamizuddin Khan, the Speaker, in the Sindh High Court. The court annulled the dissolution and restored the Assembly. But later, the Supreme Court came to the aid of the government and, through various guidelines, ordered the formation of the second Constituent Assembly, which passed the 1956 constitution and restored the legal and constitutional order in the country.

In 2007, members of the superior judiciary stood against the attempt by military dictator Pervez Musharraf to send the chief justice packing. That triggered a nationwide movement led by lawyers and culminated in the restoration of the CJP and other judges, and thereby the supremacy of the Constitution and rule of law in the country.

There are other instances where the top judiciary offered their services for resolving constitutional crises and settling political disputes, like the one related to the allegations of rigging in the 2013 general elections. The judiciary has indeed played its role thoroughly constitutionally, and any criticism is, therefore, unwarranted.

Published in The Express Tribune, April 11^th, 2022.

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