Our Daedalian maze

When King Minos of Crete decided to imprison the Minotaur — a creature with a human body and a bull’s head — he ordered Daedalus, a highly skilful architect, to create the necessary structure. Daedalus built a labyrinth so complex that he himself could barely escape it, and then too only with the help of Pasiphae (the wife of King Minos).

What or who will be the equivalent of Pasiphae to help the Supreme Court of Pakistan escape the legal maze it has created for itself?

Ah! As the Tuesday decision to put Ch Pervaiz Elahi back as CM shows, the SC itself! It’s Daedalus and Pasiphae rolled into one. But let’s go back in time a little.

The more recent story begins in May this year when a five-member bench of the SC gave a 3-2 split verdict in the presidential reference seeking interpretation of Article 63-A (which deals with “Disqualification on grounds of defection etc”). The reference was sent to the SC after the combined opposition managed to oust former Prime Minister Imran Khan through a no-confidence vote, bagging 174 votes for the VoNC to carry through.

Interestingly, the Pakistan Tehreek-e-Insaf (PTI) dissidents did not actually vote against Khan because the Opposition had managed to go past 172 on its own steam and had decided not to seek the dissidents’ votes.

A three-member majority of the SC held that dissident members of a parliamentary party could not cast votes against their party’s directives and that dissident members’ votes should not be counted. Justices Jamal Mandokhail and Mazhar Alam Khan Miankhel disagreed with the verdict and wrote dissenting notes.

Justice Mandokhail noted that any amendment to the constitution was to be exercised “within the parliament” and that judges have “no authority to assume the role of…parliamentarians”. He argued that the judges, while interpreting the constitution, “should limit themselves to a fair reading of its words and the intention of its framer, and no more”, adding that anything other than that would make “judges enter the realm of creating, not just interpreting the constitution.” Much the same arguments were given by Justice Miankhel in his dissenting note.

Many legal experts had criticised the majority SC judgment for having rewritten the constitution and, in doing so, encroached on parliament’s powers and functioning. They had also noted that the SC’s ruling had taken away the right of an individual member to vote according to his conscience and effectively closed the door on any future VoNC. In other words, the ruling had made Article 63-A redundant.

Let’s park this for a while and look at the political side of the Daedalian maze. It is a matter of empirical record that since the mid-noughties, the SC has been expanding its powers through the liberal use of suo motu notices. Equally, the inability of political actors to agree on basic rules of the game has meant that different sides have continually sought to obtain advantage by approaching the courts.

Dr Ilhan Niaz, professor of history at the Quaid-e-Azam University, argued in a 2020 paper titled “Judicial activism and the evolution of Pakistan’s culture of power,” about the emergence of a “Pakistani variant of a rule of justice tradition that employs the metaphor of the colonial rule of law tradition.” He noted that “this hybrid, the formal apparatus of colonial constitutionalism is employed using expansive, almost despotic, discretion by the superior judiciary, in order to hold the executive to the account.”

On June 23, 2022, Yasser Kureshi, a post-doctoral research fellow at Trinity College, Oxford, put out a paper for Carnegie Endowment for International Peace, titled, “Politics at the Bench: The Pakistani Judiciary’s Ambitions and Interventions.” Kureshi noted that the higher judiciary in Pakistan has emerged “as an assertive and active centre of power,” so much so that “the superior judiciary has moved beyond just arbitrating political disputes”. It now plays “a tutelary role of its own within the political system: constraining the authority and vetoing the policies and actions of elected institutions in order to shape politics and policies in line with its own preferences.”

This is how he put it: “With the judiciary impacting and intervening in political processes and outcomes, the role and authority of chief justices has become especially significant. Beyond public interest litigation and judicial appointments, the chief justices of the high courts and Supreme Court also came to decide when cases would be accepted for hearings and how many and which judges heard those cases. Thus, chief justices can set their court’s agenda and indirectly impact case outcomes through bench selection.”

So, while we have, on the one hand, the inability of political actors to (a) emerge from the shadow of the military and (b) agree on the rules of the game, we also have on the other hand, an interventionist judiciary which, for the most part, does not consider judicial restraint as a virtue.

Result: a pushback from the political actors and their supporters even as they appear incapable of resolving their differences and even as they employ legal trickeries that would put the most infamous shyster lawyer to shame.

And what’s the pushback? Increasingly overt references to judges and benches being biased. After the SC ruled to reject PTI’s move to dissolve the assembly to avoid the VoNC, forcing the vote which ousted Khan, the latter went on a major offensive against the court. Since then raging against the higher judiciary, the Election Commission of Pakistan and the “neutrals” has become a motif in all his speeches, interviews and statements.

This time round the government has decided to adopt Khan’s confrontational approach, first by demanding a full court to hear the case regarding rejection by the Punjab Assembly’s Deputy Speaker, Dost Mazari, of the PMLQ votes in the run-off election for CM Punjab, and second by then choosing to boycott the subsequent proceedings. Mazari had used the shield of SC’s earlier verdict regarding 63-A and rejected the 10 PMLQ votes because the party leader, Shujaat Hussain, had written a letter to the party legislators, directing them to not vote for PTI’s candidate for the CM office, Chaudhry Pervaiz Elahi.

While the PML-N’s strategy failed, as is clear from the Tuesday verdict, its continuing demand for a full court to interpret Article 63-A raises a number of issues. Since a full court will take time to render judgement, especially if it were also to hear the review petitions against the SC’s earlier judgement, the PTI has argued that the demand is a mere waste of time. On the other hand, the PDM/PML-N’s contention was — and remains — that the Chief Justice seemed to rely only on a few favoured judges to sit with him and that he was, through his selections, “packing the bench” against the PML-N. The further insinuation is that a larger bench would overrule the Supreme Court’s earlier 3-2 verdict on Article 63-A.

One proposal suggested by Feisal Naqvi, an eminent lawyer, who I spoke with, was for the court to split the two issues. It has decided the immediate issue of the Deputy Speaker’s ruling, but it needs to constitute a full court to hear the review petitions regarding Article 63-A. The crux of Naqvi’s argument is that there was/is now a genuine degree of contradiction and confusion in relation to the issue of defection and that, given the importance of the matter, it was/is imperative that it be resolved with finality. It doesn’t seem that the SC would take that route but Naqvi’s proposal merits further discussion.

Be that as it may, the trichotomy Justice Miankhel referred to in his dissenting note has lost its balance. That’s both because of weakly institutionalised political parties and the judiciary’s own enthusiasm for activism. Kureshi is correct to allege that “courts [have] become sites for managing political disputes [and] generated a perception among judges and lawyers regarding the limited legitimacy of the state’s political leadership and the potential for the judiciary to shape national politics and policies.”

Such is the inter-institutional mess that one is hard-pressed to figure out how to untangle it. Past experience of extra-constitutional interventions has proved that cutting the Gordian knot is not a viable way forward. But then, how does one get out of the current jumble?

Going back to Daedalus, Ovid tells us that after Theseus and Ariadne eloped together, King Minos imprisoned Daedalus and his son Icarus in the labyrinth Daedalus had built. They could not leave Crete by sea since Minos kept a strict watch on all vessels; nor could they take the land route. So, Daedalus set to work to make wings for himself and Icarus and flew out of the Labyrinth.

Is there a way out of our Labyrinth? Or, will we, like Icarus, overreach even after flying out of the maze and end the flight in tragedy?

The writer is a journalist with interest in foreign and security policies