At the Center of the Storm: Pakistan’s Political Crisis and the Supreme Court

Yasser Kureshi

University of Oxford

Pakistan’s Supreme Court found itself at the center of a high-stakes political battle last month. As former Prime Minister Imran Khan attempted to block a vote of no-confidence in his leadership that he was likely to lose, the Court intervened to force Khan to face the vote. This intervention earned the apex court praise from quarters concerned about Khan’s brazen disregard for constitutional and democratic norms, and condemnation from Khan’s supporters who accused the Court of colluding in a broader conspiracy against Khan. 

In this brief analysis, I provide some background on the politics behind the vote, discuss the proceedings leading up to the Court’s decision, and consider what the decision and its aftermath means for the separation of powers, judicial legitimacy, and the Court’s role in the ongoing political crisis.

The Supreme Court at the Heart of a Hybrid Regime
Pakistan belongs to a group of “hybrid” states in which power remains contested and negotiated between political and bureaucratic power centers. The judiciary is placed in a unique position as arbiter of this dissonance, resulting in the judicialization of mega-politics: where matters of great political significance are decided by the courts.
In 2018, Khan—an anti-corruption populist with a proven capacity to mobilize people—and his party—the Pakistan Tehreek-e-Insaaf (PTI)—won the elections with the support of Pakistan’s powerful military. With the PTI in power, the military’s role in the state’s governing structure expanded. However, by 2021, the relationship between the military leadership and Khan had frayed, providing an opportunity for opposition parties to push back against the PTI. A powerful alliance of opposition parties came together to call for a vote of no-confidence in Khan’s leadership. As it became increasingly apparent that Khan did not retain the military leadership’s support, and would lose the no-confidence vote, Khan’s party started claiming that the vote was a product of an American conspiracy to topple him.

Finally, on the day the no-confidence vote had to be held, the Deputy Speaker of the National Assembly, loyal to Khan, rejected the vote on the grounds that it was borne of an international conspiracy. Khan then dissolved the Assembly and called for fresh elections. The opposition and bar associations rushed to the Court to challenge the constitutionality of these actions.

The Court Decides

For four days, all eyes were on the Court. Several of the Judges on the bench for the case were sympathetic to Khan’s anti-corruption populism and had disqualified leaders of the opposition parties on grounds of political corruption. 

First, PTI’s lawyers argued that the Deputy Speaker rejected the no-confidence vote because it violated a constitutional clause demanding loyalty to the country, and demanded the Court look into evidence of the claimed international conspiracy. However, in oral proceedings Judges appeared skeptical of this argument, asking how the Deputy Speaker acted “based on accusations, not findings,” or how a constitutional article demanding loyalty of citizens to the state applied.
Second, PTI’s lawyers argued that the Deputy Speaker’s actions were a parliamentary procedural issue and, under the Constitution, procedural irregularities in parliament could not be challenged in courts. If the Court overruled the Deputy Speaker’s action, it would violate parliamentary sovereignty. However, the Chief Justice said there was enough precedent for the Court to intervene when the Speaker acted unconstitutionally. The PTI’s argument, based on an already tortured understanding of separation of powers and parliamentary sovereignty, was not going to gain traction with a Court that was not inclined to place limits on judicial interventions into elected institutions.
Finally, PTI’s lawyers argued that, even if the Deputy Speaker had acted unconstitutionally, the best course of action, in the “national interest”, would be to allow new elections to take place anyhow. Such an action was not without precedent as at several historical junctures, when former military dictators or military-backed presidents had acted without constitutional sanction, the Court had either justified these constitutional deviations as ‘necessary’, or refrained from overturning these actions, in the ‘national interest.’ However, this legacy, widely condemned within Pakistan’s legal community, was one the Court was keen to distance itself from.

The Court rejected PTI’s arguments, ruling that the Deputy Speaker’s actions were unconstitutional and thus of no legal effect. Because a prime minister facing a no-confidence vote could not dissolve the Assembly, the Court decided that the Assembly stood restored and the vote had to be completed within one day.

The Night of the Vote
As the day of the restored vote of no-confidence drew to a close, Khan seemed bent on derailing the vote. Stories emerged of tense meetings between government officials and the military, as Khan refused to accept a likely opposition victory. Judges re-opened the Court close to midnight, to signal to the parliamentary leaders that they risked being held in immediate contempt for not complying with court orders. The Speaker and Deputy Speaker, caught between disobeying their party leader and the Court, resigned. A temporary Speaker then held the vote of no-confidence, and Khan was finally removed from power.
However, the night’s dramatic events and Khan’s foreign collusion narrative convinced his supporters, and indeed others, that Khan had been a victim of a broader conspiracy. Khan’s supporters have since mobilized to support him and accused the new government, judges, and even the army leadership, of being conspirators and traitors. 

Beyond the Verdict
While the Court’s intervention against the Deputy Speaker’s blatantly unconstitutional action was welcome, the detailed judgment (expected to be delivered in coming months) will clarify what precedent this will set in enabling judicial interventions into the running of the legislature. In recent years, the judiciary has incrementally aggrandized its power to oversee and intervene in policy-making and political administration. Will the Court now advance its prerogatives to intervene in parliamentary processes and place new limits on parliamentary sovereignty? This remains to be seen. The detailed verdict will also shed light on how the Court envisions its role in protecting parliament from prorogation, dissolution, and other tactics ruling parties can use to undermine parliamentary contestation and executive accountability.

In recent years, the Court’s institutional legitimacy suffered setbacks within Pakistan’s outspoken bar associations, amid concerns that the Court’s recent jurisprudence favored autocratization, possibly at the military’s behest. Had the military still supported the government, the Court may have even decided this case differently. But the Court’s decision went some way towards restoring the Court’s credibility with large segments of the bar, who saw it as an affirmation of constitutionalism in the face of a populist assault on constitutional norms. 

However, outside the legal community, Pakistan’s broader urban middle classes have long been the support base for Khan’s anti-corruption populism. This demographic has widely condemned the Court’s role in Khan’s removal. Thus, judges are caught between their professional networks in the legal community and their social networks of urban middle-class households. In coming months, judges will have to balance the conflicting expectations of their core constituencies as they seek to maintain or rebuild institutional legitimacy.

The decision and its aftermath show the perils of courts getting embroiled in questions of mega-politics. Even as Khan’s party criticizes the Court, it has submitted legal petitions contesting aspects of the political transition, and even demanded the Court form a judicial commission to investigate their conspiracy allegations, while the new government is preparing to legally charge members of Khan’s party with treason for subverting the Constitution. When courts wade into questions of mega-politics, some stakeholders are likely to be disappointed by their decisions, and courts risk damaging their credibility and legitimacy with those constituencies. In Pakistan, where politics is highly judicialized, courts repeatedly confront this dilemma. How the Court handles this quandary will impact its legitimacy and set the future of regime politics in Pakistan. 

Yasser Kureshi is a postdoctoral fellow in constitutional law and constitutional theory at Trinity College, University of Oxford.

Suggested Citation: Yasser Kureshi, ‘At the Center of the Storm: Pakistan’s Political Crisis and the Supreme Court’ IACL-IADC Blog (5 May 2022) https://blog-iacl-aidc.org/new-blog-3/2022/5/6/at-the-center-of-the-storm-pakistans-political-crisis-and-the-supreme-court.