There are four major interconnected and mutually exacerbating political and constitutional crises currently unfolding in Pakistan, in addition to its economic woes, increasing frequency of terror attacks and its ongoing recovery in the wake of last year’s floods. These crises are delayed provincial elections, questions over the powers of the Chief Justice, arrests of opposition leaders and consequent extrajudicial violence and, finally, the proposed trials of civilians under military courts.
- Delayed provincial elections
After Imran Khan was ousted from office by a vote of no confidence, he announced in December 2022 that the Punjab and Khyber Pakhtunkhwa (KP) assemblies would be dissolved to pave the way for elections and to disassociate his party from the “current corrupt political system” amidst rising inflation, unemployment and a brain drain. The Pakistan Tehreek-e-Insaf (PTI)-led assemblies were eventually dissolved in January 2023, Punjab on the 14 and KP on the 18. Article 105 of the constitution states that provincial elections must be held within 90 days after dissolution, which means that elections should have been held in Punjab and KP by the 14 and 18 April, respectively.
On 20 February, President Alvi unilaterally declared 9 April as the date for the Punjab and KP elections in order to uphold the constitution after he claimed that the governors of Punjab and KP had not performed their duty to appoint a date. The Chief Justice of Pakistan (CJP) Umar Ata Bandial decided to take suo motu notice (action taken by the court of its own volition) of the issue two days later, with the Supreme Court (SC) consequently declaring on 1 March that elections should be held within the 90-day period, allowing the Election Commission of Pakistan (ECP) to deviate from this deadline by the “barest minimum.”
Yet, the ECP announced on 22 March that the Punjab elections would be postponed until 8 October, setting the same date for KP a few days later. This was after the interior and finance ministries had informed the ECP that “elections are not possible due to deteriorating law and order situation, charged political environment, serious threat to politicians” and that it would be difficult for the federal government to release the necessary funds due to the economic crisis. The army had also suggested it would not be available for election duties in light of the security situation across the country.
The authorities must conduct their investigations and application of the law consistently and without political motivation, regardless of the political affiliation of the involved parties. Otherwise, the integrity of the government and police will remain shattered.
The PTI consequently approached the SC to contest the ECP’s delay in elections. Shortly after, on 4 April, the SC (a three-member bench under CJP Bandial) ruled that the ECP’s postponement of the Punjab elections was “unconstitutional” and announced that elections would be held on 14 May for the Punjab Assembly, citing that the ECP did not have the authority to extend the constitutional deadline for elections. It directed the federal government to release the required election funds for both Punjab and KP by 10 April and for the Punjab caretaker government and federal government to provide security plans. The central bank subsequently allocated the funds to conduct the Punjab elections but stated that it did not have the authority to release the funds, while the National Assembly passed a resolution to not release those funds on 17 April.
In line with Interior Minister Rana Sanaullah’s warning on 22 April that elections would not be held on 14 May because the army, judiciary and ECP were not ready, 14 May passed by without the Punjab elections being held. Therefore, the lapse of the 90-day period for elections represents a violation of the constitution in a move largely characterised as “democracy delayed is democracy denied”.
- Powers of the Chief Justice of Pakistan
Another crisis emerged out of the above, insofar as the CJP had taken suo motu notice on 22 February of the delay in announcing the provincial elections, a power granted to the SC through Article 184(3) of the constitution. The original nine-member bench was reduced to five; after four judges recused themselves, and it was ruled in a 3-2 verdict on 1 March that the elections had to be held within the 90-day constitutional period.
The same day, SC justices Mansoor Ali Shah and Jamal Khan Mandokhail released a dissenting note, calling for a “revisit” to the “power of one-man show enjoyed by the office of the Chief Justice of Pakistan,” given its incompatibility with “democratic norms” and susceptibility to “abuse of power.” Two of the major issues Shah and Mandokhail identified with suo motu proceedings were that, firstly, the action should not constitute “judicial overreach” if, like in this case, the issue was already pending adjudication before a provincial high court or had already been decided by a high court, secondly, that this original jurisdiction of the court is “extraordinary” and only to be exercised in “exceptional cases” relating to the protection of fundamental rights. “This jurisdiction must not, therefore, be frequently and incautiously exercised, lest it damages the public image of the Court as an impartial judicial institution.”
Usama Khawar, a practising lawyer and teacher of law at LUMS, wrote in Dawn that the suo motu jurisdiction had been challenged before but without success and that, practically, suo motu “means that the CJP may take up any issue of interest to him, fix it for hearing before a bench of his choosing, which almost always is the bench headed by himself and give a decision of his liking. Most importantly, there is no remedy of appeal against the decision by the SC in its original jurisdiction.”
As another lawyer, Azwar Shakeel, noted, the two senior-most judges, Qazi Faez Isa and Sardar Tariq Masood, were not included in the bench, while Mazahir Ali Akbar Naqvi was, despite the audio leak controversy. Isa would later pen a note with Aminuddin Khan that the CJP does not have the authority to make special benches nor decide its members; after a five-member bench was formed in response to the PTI’s petition about the ECP’s delay in the election date. After Khan and Mandokhail recused themselves, the three-member bench ruled that the ECP’s delay in the Punjab elections was “unconstitutional” and that they should be held on 14 May.
On 28 March, the federal cabinet approved new legislation, called the Supreme Court (Practice and Procedure) Bill, 2023, with the aim of removing the powers of the Chief Justice of Pakistan to take suo motu notice and to constitute benches. The bill was swiftly passed by the National Assembly on 29 March, which has been welcomed by some lawyers in light of the identified issues above.
The central constitutional and political questions here thus include: who has the constitutional authority to choose a date for provincial elections after the assemblies stand dissolved (Shah and Mandokhail’s note states the Lahore High Court ruled it was the ECP)? Do the suo motu powers of the Chief Justice represent the overreach of the SC, and do they reduce the integrity and credibility of the Court? Has the judiciary, particularly the figure of the CJP, become too politicised or activist (chief of the Jamiat Ulema-e-Islam (F) (JUI-F), Maulana Fazl-ur-Rehman, had called for a sit-in of the Pakistan Democratic Movement (PDM) outside the SC, alleging that the CJP been “facilitating” Khan)?
- Arrests of opposition leaders and consequent extrajudicial violence
Imran Khan was arrested on 9 May by paramilitary rangers on the orders of the National Accountability Bureau (NAB) during his appearance at the Islamabad High Court on corruption charges. He was arrested in relation to the Al-Qadir Trust case, “which alleges that the PTI chief and his wife obtained billions of rupees and land worth hundreds of kanals from a real estate firm for legalising Rs50 billion that was identified and returned to the country by the UK during the previous PTI government.”
On the same day, widespread protests and rioting broke out, with the BBC reporting from Islamabad on the same day that highways had been blocked, fires lit and stones were thrown. There was also an attack by protestors on the Pakistan Army’s General Headquarters (GHQ) in Rawalpindi, the Lahore Corps Commander’s House and family and the setting on fire of the Radio Pakistan building in Peshawar. At least eight people are reported to have died, and hundreds more have been injured in the protests. Unacceptable extrajudicial violence, vandalism and arson have been meted out by the general public and the police alike. The government has also been accused of double standards for allowing and even facilitating a JUI-led sit-in in front of the SC on 15 May while section 144 was enforced in the capital.
On 10-11 May, numerous significant PTI leaders were arrested, largely under section 3 of the Punjab Maintenance of Public Order Ordinance, 1960, in relation to the aforementioned law and order situation across the country. Others were charged for other alleged offences, such as Omar Sarfraz Cheema for misuse of powers while being the governor of Punjab. After some leaders had been released and granted bail, they were rearrested, including Shireen Mazari, Senator Falak Naz, Maleeka Bokhair and Yasmin Rashid.
Three days after Khan’s arrest, on 11 May, the SC ruled that the “manner of execution of the arrest warrant” issued against Imran Khan was “invalid and unlawful”, despite the Islamabad High Court had declared his arrest legal after finding that his fundamental rights under articles 4, 9, 10-A and 14 of the constitution had been infringed. When summoned to court the following day, Khan was granted bail for two weeks in relation to the Al-Qadir Trust case and protected from any rearrest before that time.
The political affiliation of the violent protests and the forces that have incited them have been disputed. A spokesperson for the Punjab Police said on 15 May that 3,186 PTI workers had been arrested since 9 May, with the Punjab government’s intelligence wing tasked with identifying those within the PTI suspected of involvement in the attack on the Corps Commander’s House. But Imran Khan alleged that this campaign is a ruse to “silence and oppress PTI workers and supporters” and that the violent protestors of 9 May were employed by the state to ruin the PTI’s image, though he nor the PTI have offered any evidence to support this claim. Khan’s own government was criticised for its repeated crackdown on the political opposition, with Human Rights Watch alleging that opposition leaders were arrested on politically motivated charges, in which the NAB again played a partial role. However, the sheer number of PTI leaders and workers in such a short time span has been greater.
While those who have responded to the arrest of PTI leaders with violence and intimidation against the state and the people must face justice, all members of the party cannot be treated indiscriminately for the crimes of some of its members. After it was reported that 564 PTI workers had been arrested, the Human Rights Commission of Pakistan tweeted on 14 May that it is “deeply concerned by reports of random arrests and cases filed arbitrarily against PTI workers across Pakistan. A distinction must always be made between those resorting to violence and nonviolent political workers. No one must ever be penalised for their party affiliations. This goes against all democratic norms.”
- Proposed trial of civilians in military courts
During a special Corps Commanders Conference on 15 May, it was announced that civilians suspected of involvement in the unrest could be tried under the Pakistan Army Act, 1952 and the Official Secrets Act, with the army terming 9 May when military installations were attacked as a “black day.” While the Army Act is primarily concerned with trials of military and civilian personnel employed by the Pakistan Army, amendments to the Army Act in 2015 allowed civilians to be tried by military courts if they, among other things, were involved in attacking military officers or installations, terrorism and wider anti-state activities. But ultimately, prosecution requires sanction from the federal government. This was confirmed by a retired army official, who also said that over 20 civilians had been tried under the Army Act during Khan’s tenure. Indeed, a letter was written by Human Rights Watch to Khan while he was the prime minister in August 2018, which addressed how military courts had been reinstated in March 2018 to try civilians, in part because they do not allow independent monitoring.
PML-N’s Senior Vice President, Maryam Nawaz, has since supported the call to try those involved in the violence on 9 May in light of the politicisation of the civilian courts, alleging that they have become “controversial and a tool of a political party,” referring to the PTI. However, lawyers have suggested that the use of military courts against civilians is an affront to human rights, contravening Article 10-A of the constitution (right to a fair trial). They should be avoided at all costs, noting that the related offences are covered by Pakistan Penal Code, such as rioting, mutiny and defilement of the national flag.
Dinushika Dissanayake, Deputy Regional Director for South Asia at Amnesty International, also said that the organisation had “documented a catalogue of human right violations stemming from trying civilians in military courts in Pakistan, including flagrant disregard for due process, lack of transparency, coerced confessions, and executions after grossly unfair trials. Therefore, any indication that the trial of civilians could be held in military courts is incompatible with Pakistan’s obligations under international human rights law.”
Conclusions
These overlapping political and constitutional crises relating to democracy, the integrity of the judiciary and office of the president, the powers of the CJP, arrests of opposition leaders, extrajudicial violence by the public and authorities and the trial of civilians within the military courts are not new phenomena in Pakistan, yet their consequences for the rights of the people, the state of the judiciary, law and order and political polarisation remain dire. Politically motivated arrests of opposition leaders and the use of military courts had occurred under Khan’s government, to which he and his party are now falling victim. This cannot excuse the treatment of Khan and the wider PTI, but it does complicate the path towards a resolution and a commitment to “never again”, given the messy involvement of all parties, past and present.
Steps towards this path must include sincere attempts at dialogue between all relevant stakeholders, political or otherwise, in order to put the people first. This can help with healing among the general public too. Provincial elections should be held as soon as possible to restore democratically elected governments in Punjab and KP and, thus, faith in the system. The authorities must conduct their investigations and application of the law consistently and without political motivation, regardless of the political affiliation of the involved parties. Otherwise, the integrity of the government and police will remain shattered. Consistency and a rules-based process, as advised by the lawyers above, is also necessary within the judiciary to maintain its independence, ensure justice is done and prevent judicial overreach. The general public should not resort to violence, vandalism and intimidation, while the right to peaceful protest should be protected. Finally, the military courts are not the appropriate place to try civilians involved in the unrest, who should instead be tried through the criminal legal system.
