DispatchesRabia Shuja holds an LLM in International Human Rights Law from Griffith College, Dublin and is a Staff Correspondent for JURIST in Pakistan. She reports from Islamabad.
Hello everyone, I am Rabia Shuja – JURIST’s new Pakistan Correspondent. I have the honour to be reporting on recent developments in my country. This first piece is an introduction to Pakistan to provide necessary context and an overview of the current political and legal landscape.
Pakistan is a country currently going through a severe political and economic crisis. Since April the country has witnessed: a vote of no confidence which ousted former Prime Minister (PM) Imran Khan, allegations of foreign conspiracies, accusations of judicial bench fixing, as well as a major political party engaging in foreign funding. In the midst of such political turmoil lies an economy teetering on the brink of collapse.
These current political issues are not novel, and are a reflection of what has plagued the country for decades. Pakistan’s political history is cyclical. Weak State institutions lead to political deterioration, which allows the military – using the judiciary to legitimise their actions – to seize power under the guise of restoring stability. Under the military dictator’s rule temporary stability is achieved, although democratic institutions are undermined and fundamental rights are infringed upon. This leads to a crisis which ends with the removal of the military dictator, who is then replaced with a democratically elected leader – only for the cycle to begin again.
The judiciary facilitating the military’s interference in Pakistani politics can be traced back to the mid 1950s when Chief Justice Muhammad Munir used the ‘Doctrine of Necessity’ to justify the dismissal of the 1st Constitutent Assembly by the Governor General Ghulam Muhammad. This decision effectively diminished the role of Parliament and set back the democratisation of Pakistan.
In 1958, Pakistan came under military rule for the first time when President Iskander Mirza abolished the Constitution and declared martial law. Assemblies established under the Constitution were dissolved and General Ayub Khan was named as Chief Martial Law Administrator. In the case of The State v. Dosso and Others, the Supreme Court ruled on the legality of the 1958 martial law regime. The court, applying Hans Kelson’s Pure Theory of Law, held that a constitution may be changed through a coup or successful revolution. The decision in Dosso established the pattern of the judiciary aiding the military by giving it legal grounds to seize power – thereby laying down the blueprint for future coups. In 1977 another military coup took place under General Zia ul Haq. General Zia placed Zulfiqar Ali Bhutto under house arrest and stripped him of his powers as PM. Although General Zia pledged that fair elections would take place, it soon became apparent that he had no intention of relinquishing his power, and he retained power until his death in 1988.
The last military coup in Pakistan took place in 1999, when once again a democratically elected government was toppled by General Pervaiz Musharraf. Musharraf declared a state of emergency, named himself Chief Executive, and suspended the Constitution. The 1999 coup was also legitimised by the judiciary under the doctrine of necessity. Although Democracy was restored for a brief period during Musharraf’s reign, in 2007 he declared a state of emergency and suspended the Constitution once again. In 2008 as the ruling coalition government was moving to impeach him, Musharraf resigned, bringing the country’s last military coup to an end. Moreover, in 2009 a 14-judge bench ruled in a landmark judgement that the state of emergency declared by Musharraf was unconstitutional and thus illegal. The Supreme Court finally rejected the doctrine of state necessity. This decision illustrates how the judiciary does clash with the army, although such cases are outliers rather than the norm.
In 2010 the National Assembly passed the 18th Amendment of the Constitution of Pakistan. The 18th Amendment marks a turning point in Pakistan’s history as it reversed previous military dictators’ attempts to centralise power within the presidency. It removed the power of the President alone to dissolve parliament and establish emergency rule. It instead gave the PM, parliament and provincial government greater power under the constitution – turning Pakistan into a Parliamentary Republic.
The Amendment altered the ongoing cycle in Pakistan as the military could no longer stage coups. The military was thus forced to retreat and was only able to exert influence behind closed doors. It then began laying foundations for a hybrid regime, in which it retained all real power, but maintained a veneer of democracy with a civilian government in place. The military once again employed the judiciary to undermine democratically elected officials – most notably PM Nawaz Sharif. In 2017, the Supreme Court disqualified Sharif for failing to disclose his assets. The apex court removed Sharif from office entirely on the basis of evidence provided by the Joint Investigation Team, which included two serving army officers who had neither judicial nor investigative experience.
This paved the way for the army to secure the 2018 elections through Pakistan Tehreek-e-Insaf’s (PTI) Imran Khan, who had garnered support through his populist platform against corrupt and dynastic politics. However, the results of the 2018 elections faced significant backlash, since the army deployed 370,000 troops to ensure the elections took place with ‘fairness’ and ‘transparency.’ Allegations of rigging were hurled at PTI, with the opposition parties frequently referring to Khan as the ‘selected’ PM. During Khan’s term, the military expanded its control to matters relating to the economy and media. Furthermore freedom of expression was greatly stifled, as the State cracked down on political dissent through media blackouts, banning news channels, and charges of sedition.
Once in power Khan’s government also failed to deliver on promises of holding corrupt politicians accountable, especially when they were unable to prove corruption and money laundering charges against the leader of the opposition – Shehbaz Sharif. The public’s disillusionment following this failure and the spiralling economy coupled with the increasing threats to internal security created a rift between Khan and the military. The relationship reached a breaking point when Khan was unwilling to replace General Faiz Hameed – a loyal supporter of his – with Lieutenant General Nadeeem Anjum as Director General of the Inter-Services Intelligence.
This allowed Pakistan’s opposition party to close in on PTI, leading to the vote of no confidence in April of 2022. Khan attempted to have the vote blocked on grounds of a ‘foreign conspiracy’ to remove him from power, and President Arif Alvi dissolved the National Assembly on Khan’s advice. Members of the opposition appealed to the Supreme Court to adjudicate on the legality of the blocked vote. The Supreme Court unanimously reversed the dissolution of Parliament and held that the motion to block the vote was contrary to the Constitution. Thus the opposition moved forward with the vote of no confidence and Imran Khan was removed from office. On the 10th of April 2022, Pakistan Muslim League – Nawaz’s (PML-N) Shehbaz Sharif was nominated as a candidate for PM by opposition parties and was sworn in on the 11th of April.
Although Khan was removed through democratic means, many believe Khan would not have been ousted were it not for the army withdrawing their support. This marked an end of the hybrid regime. Khan, still claiming he had been ousted by a foreign conspiracy, mobilised his supporters against the newly elected government and began to openly criticise the military. The political instability further damaged the economy. With rising inflation and depreciation of the Pakistani Rupee, PML-N began to lose the support of the people, as shown by PTI’s victory in the by-elections, in which they secured 15 out of the 20 vacant Punjab Assembly seats. PTI then nominated Pakistan Muslim League’s (Q) (PML-Q) Pervaiz Elahi as their joint candidate for the office of Chief Minister of Punjab. With their success in the by-elections, it seemed certain that Elahi would become the next Chief Minister of Punjab. However, after counting votes, Punjab Assembly Deputy Speaker Mazari rejected 10 votes cast by PML-Q members for going against the instructions of their Party Head, based on the recent Supreme Court decision regarding Article 63A. This resulted in PML-N’s Hamza Shehbaz retaining the post of Chief Minister Punjab. The decision was challenged in the Supreme Court, where a three-member bench held that Deputy Speaker Mazari’s ruling was null and void, and named Pervaiz Elahi the new Chief Minister of Punjab.
The decision received serious backlash and accusations of judicial bench fixing were made against the court. Chief Justice Umar Ata Bandial – who had the power to form the bench – chose himself and two other judges who had previously sided with him in the Article 63A case, and thus ensured there would be no dissenting opinions. Moreover, he rejected the coalition government’s request for the full court to hear the petition. This decision is fairly problematic since the Supreme Court not only contradicted its own decision made two months prior in the Article 63A case, but also blatantly disregarded the constitution.
The results of the by-election marked a positive turn for Imran Khan, until Pakistan’s Election Commission ruled that PTI had received funds from oversea companies and individuals. Furthermore the Commission also held that PTI illegally hid 13 of its bank accounts from authorities. Since foreign funding is prohibited in Pakistan, the electoral body has issued a summons to Khan’s party to make its case. The foreign funding case against Khan further complicates matters as he was attempting to make a political return to contest the 2023 general elections. Since Khan’s party illegally hid accounts and falsified declarations, he may be disqualified under Article 62/63 of the Constitution, which requires a member of Parliament to be honest and truthful.
As we move towards the 2023 elections it remains to be seen what role the military and the judiciary shall assume. The courts have been placed in a precarious position in relation to Imran Khan’s foreign funding case. The Supreme Court previously disqualified former PM Sharif under the same constitutional provisions and the findings against Khan are far more substantial than those against Sharif. It thus seems that the Supreme Court shall have to disqualify Khan or show a clear bias towards him.
Moreover, it seems that the military is running out of options. Due to the 18th Amendment a coup is no longer viable. Their attempt at a hybrid regime has also failed, and following the vote of no confidence Imran Khan has mobilised his supporters against the military. Although they retain a significant amount of power, with the public’s anti-military sentiment and as they have no political party to back, their role in the upcoming election remains to be seen. The next year will prove vital in determining the path Pakistan is to take and whether the cycle that has plagued Pakistan shall continue.
As the events of the next year unfold, I hope to provide insight into what is an extremely interesting time in Pakistan’s history, and invite you all to join me!
