The first bit of career advice I can recall getting was this: “A great lawyer knows a lot about history, a lot about politics, a lot about literature, and a bit of law.”
That, now, seems a different time: today, even that ‘bit’ of law seems dispensable. Over the past few weeks, we’ve heard it said in a dozen different ways: this is no longer about the law.
It certainly isn’t about the law for the Supreme Court. After performing an exorcism on Article 63-A to speak to its ‘spirit’ over its text, today it sees nothing but ink. Meanwhile, as the next chief justice of Pakistan passes an order seeking to restrain the entire court from exercising an entire jurisdiction created under the constitution, the current chief justice seeks to undo it through an administrative circular.
Later, an eight-member bench is formed to hear a case against a law that does not yet exist. Only two of those eight do not have a direct interest in the matter. Only two of the provinces of the Federation are represented. The only thing that all eight have in common is that they have not expressed a judicial view contrary to that of the chief justice. The bench declares that the law is to be pronounced dead on arrival. In departing from decades of precedent, it relies on only one word from one case, which – unlike the case before it- – did not relate to a law that had not yet been passed. And not one judge of eight expresses the faintest hint of discomfort.
It isn’t about the law for the PDM. The constitution could not spell out elections within ninety days in more obvious terms. The Supreme Court spells it out for them, just in case. But the National Assembly decides that it ‘rejects’ the order of the highest court. Having once testified to the truth of textualism, it has now switched sides. Now, it has found the ‘spirit’ of elections under a neutral setup: a concept that did not even exist before the 17th Amendment, and which still doesn’t translate from provincial elections to the national level. Funds are not released, personnel are not deployed. The executive passes the blame back to the legislature which asks the court to go climb a tree. All this, while humdrum matters like arrests and abductions continue. All this to snatch the last few moments of time before oblivion.
And it isn’t really about the law for the PTI, either. A year ago, when Qasim Suri dissolved the National Assembly while Imran Khan faced a vote of no-confidence, slow-motion TikToks celebrated the ingenuity of a great ‘Surprise’: that the constitution didn’t have to matter. The text of Article 63-A was just as clear as that calling for elections in 90 days, but the text only matters today.
The supremacy of parliament matters when it comes to elections, but when parliament actually does what it is supposed to do – legislate, it takes a back seat. The legislature is important only when they have not abandoned it; otherwise even premature interventions by unelected judges are to be celebrated. The ends should yield to the means, just so long as we don’t label this a doctrine called ‘Necessity’.
Behind all the pretence and posturing are principles that are provisional and a constitutionalism of convenience. And behind all our pallid politics is not the profit of the people, but a relentless and feral pursuit of power.
But what, then, does history have to offer? As to the court, there are the comparisons to 1997. There are grievances over the fixation of benches, there is a court divided, there are orders against the orders of other judges. But, of course, as the Bench of Eight demonstrates, the chief justice is not in the minority here; we do not yet have judges issuing separate cause lists; and it isn’t even entirely clear what forces hold together either side, or how strong they are.
For all the partisan fault lines scribbled on the basis of the elections delay case, the criticisms of a “one-man show” or “judges acting as politicians in robes” are neither a negation of elections in 90 days, nor a genuflection to the establishment. They are an expression of aged resentment from within – resentment voiced in 1997, but also the many other times that it was dismissed for not being voiced at the ‘right time’.
The PDM’s defiance of the constitution, and the Supreme Court, seems to offer no adequate parallel in our history – at least while preserving the pretence of a civilian democratic government. And neither, seemingly, will the potential consequences – not even Yusuf Raza Gilani in 2012.
And as all of this happens around what appears to be the PTI’s indomitable march back to power, it would do well to remember. After parading the One-Page narrative for the most part of three and a half years, the PTI now admits what comes as a revelation to few outside it: that this was just a lead role in a cage. It refuses to acknowledge how it made its power, or how it lost it.
Even today, as it calls out certain uniformed men for meddling with democracy, it does not say uniforms have no place in a democracy. (The irony, of course, is that in all this, those men have remained more consistent than anyone else: for them, the law never really mattered to begin with.) If the PTI returns the same PTI that left – or no different from the PDM that it replaces – then what was any of this really for? And how long before we are here once more?
And there is, of course, one lesson common to all. Amidst all this, each party insists on its own set of principles: parliament’s power to legislate versus the people’s ability to choose their legislators, independence of the judiciary versus transparency within it, and so on. All of these draw individual support from the law. And all of these are important. And they are all important at the same time. Forgetting that is exactly when the law begins to not matter.
When some principles are forced to bend to others, then none retain meaning. For the law to matter, all of it must matter: everything, everywhere, all at once.
Oh, and as to that last bit of advice – literature – here’s some Bob Dylan:
“Can somebody tell me what we’re fightin’ for?
So many young men died. So many mothers cried.
Now I ask the question,
Was God on our side?”
Email: email@example.comSalaar Khan, "Everything everywhere all at once," The News. 2023-04-15.
Keywords: Political science , Political issues , National Assembly , Politicians , Democracy , Imran Khan , Qasim Suri , Pakistan , PTI , PDM