The Unsteady Democracy in Pakistan

Democracy, as defined by Abraham Lincoln, is the government of the people, by the people, for, the people. This definition portrays people to be sovereign where they exercise their sovereignty by delegating their power to politically skilled people through elections. These elections need to be free: there should be no discrimination in voting powers, and fair: a proper electoral commission must keep a check on the electoral processes to avoid rigging. The body that comes into power and derives its sovereignty from the people is Parliament and within it, the party with the majority votes is seen as the legitimate government of the country. Democracy will prevail if there is a proper separation of powers within the branches of the state, proper accountability, and an absence of arbitrary powers.

Recent events have raised several eyebrows regarding the political conditions of Pakistan leading to people becoming apathetic towards the system and questioning its democracy. But these events have a long history. The doctrine of necessity: Federation of Pakistan v Maulvi Tamiz Uddin Khan (1955) is a landmark case in the history of Pakistan which shows the Governor General using the ‘Doctrine of necessity' to dissolve the Constituent Assembly hence, hindering parliamentary supremacy. This was further ratified by the Sindh High Court where the judges reversed the decision of the lower court which had declared the dissolution to be ultra vires. This case had two problems that threatened democracy. Firstly, the excessive powers of the Governor General resulted in the arbitrary use of power as Lord Acton said, "power tends to corrupt and absolute power corrupts absolutely.� Secondly, the decision hindered parliamentary supremacy as there were interventions in its power by two outside forces: the judiciary and the Governor General, weakening the separation of powers. Thirdly, it went against the principle of the Rule of Law, as the Governor General used his discretionary powers and justified them by the doctrine of necessity.

Moving on to the issue of selective justice, Mohtarma Benazir Bhutto v President of Pakistan (1977) is a case where the court used a wide interpretation of the fundamental rights mentioned in the Constitution of Pakistan and declared the Petitioner's actions to be unconstitutional hence, upheld that the dissolution of the assemblies by President Ghulam Ishaq Khan to be justified. The interpretation by the court and the arbitrary powers exercised by the President(twice) created political apathy and hindered democracy. However, in Nawaz Sharif v President of Pakistan, the Court declared the dissolution of the Assembly by the President as ‘unconstitutional'. Provided that the constitution remained the same, the interpretation changed, which raises many questions about the impartiality and independence of the Judiciary which is vital for the principle of separation of powers and henceforth, democracy.

History repeated itself in 2022 when ex-Prime Minister, Imran Khan announced that he has advised the President, Arif Alvi to dissolve the assemblies and announce fresh elections. This happened after Deputy Speaker, Qasim Suri refused to hold the no-confidence vote declaring it unconstitutional against Article 5 of the constitution, and prorogued the session. However, this time the Supreme Court decided to actively intervene in the matter and took Suo Motu notice, opening the court at night. The situation was so intense that Ahsan Bhoon, President Supreme Court Bar, went as far as declaring Khan's and Suri's actions as treason under Article 6 of the Constitution.

The final verdict declared that Article 5 was not breached hence, the no-confidence motion would be carried out under Article 95 of the Constitution. Moreover, the dissolution of the assemblies was reversed, and Mr. Imran Khan became the first Prime Minister to face and lose the no-confidence vote. Some celebrate these political events as they see democracy and the constitution being saved from intervention, but certain problems need to be contemplated.

Firstly, was it necessary for the Supreme Court to intervene in the matter? According to the Article 69 of the constitution, Courts are not to inquire into the proceedings of the Parliament. This principle is essential for maintaining the separation of powers and the Independence of each branch to uphold impartiality and accountability. However, the courts took Suo Motu notice of the situation which many would regard as an essential step taken to avoid a constitutional and political crisis. But it is also important to note that judges need to be and show that they are politically dissociated. As Lord Hewart, former Lord Chief Justice of England said, “Justice must not only be done but must also be seen to be done.� The judiciary is expected to remain calm to reach an impartial, rational decision independent from any impulsiveness.

Secondly, could the courts reverse the decision of the President? President Arif Alvi had dissolved the assemblies but when the court reversed the decision of the Deputy Speaker it also reversed the dissolution of the assemblies while having no power to do so. This can be considered an arbitrary and discretionary use of power by the court. However, the court justified this by pinpointing that the dissolution was ordered per the then-Prime Minister's advice which was based on the Deputy Speaker's decision not to conduct the no-confidence vote. Since the decision was reversed all the decisions made thereafter were reversed too. Thirdly, Is the government, which came into power because of this political chaos, legitimate? According to the procedures and law, yes, since the National Assembly must choose a new head of government after a Prime Minister loses a vote of confidence. However, on democratic grounds, it may be considered illegitimate as the new party and leader have not derived their power from the electorate. The electorate had chosen a political party whose members switched support while holding office which does not reflect the will of the people and directly refutes the definition of democracy.

Ever since then, Ex-Prime Minister Imran Khan has been rallying across the country to persuade the government to hold fresh elections. The National Assembly is set to dissolve on 13 August 2023 and elections are to be held no later than 13 October 2023.