The midnight opening of the Supreme Court and Islamabad High Court on 9 April 2022 was a unique manifestation of judicial activism. It was a proactive action to prevent or preempt the commission of an act, entailing legal implications. Such action ordinarily falls in the executive domain. Judicial response is reactive, following the commission of an illegal act. Such a response is cool and calculated, after notice to, and hearing both the parties. So was the late opening of courts justified? To find the answer, we have to revisit the melodramatic events of 3 and 9 April 2022.
Having said so, let it also be stressed that courts are structured and function under the law. Judges are required to keep calm and aloof from political controversies. They have to exhibit an attitude of detachment from witnessing an event, to avoid being prejudiced by what they observe; for otherwise as witnesses to the commission of an offence, they stand disqualified to hear the case. Detachment is necessary for maintaining equilibrium, calm and balance, so as to reach the correct conclusion. The Code of Conduct provides that judges should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law.
It started on April 3, when the Deputy Speaker having rejected the PDM-sponsored no confidence motion, prorogued the session of the National Assembly. It was quickly followed by the announcement of dissolution of the National Assembly by the President and seeking nominations for a caretaker setup. At the same time, the TV channels were flashing the success of the no-confidence motion, adopted with more than the requisite majority. Simultaneously appeared the Establishment Division notification that Mr. Imran Khan has ceased to be the Prime Minister. In short, there were abundance of surprises and actions/counter actions, screamed through the media. It was no less than bombshells falling on the teeming millions, watching the show on Sunday morning. One can imagine the state of mind of the people, having to witness such an array of events and bombarded with mindboggling and perplexing developments!
The legislature and executive were at war and the fighting was going on under the hawk-eyed gaze of the Establishment. Some analysts/commentators predicted a doomsday scenario for democracy; saying, it is a God-given opportunity for Bonaparte to intervene and take over. In such a fluid situation, it was highly unlikely for the judiciary to keep calm. More so, because the warring factions were using legal jargon for their actions. Thus, at stake was the integrity of the Constitution, which judges are oath-bound to “preserve, protect and defend”. So news started pouring in that the Chief Justice was discussing the day’s developments with his brethren judges. This was followed by the revelation that the Court, having taken suo motu action, had passed an order that the Deputy Speaker’s ruling will be scrutinized and its legality or otherwise determined, together with the actions taken subsequent thereto, including the dissolution of the National Assembly.
Though a hurried action, it operated to soothe the nerves and lower tensions. Four days later, the Court passed a short order, nullifying the Deputy Speaker’s ruling and all actions taken pursuant thereto. The Court further directed the Speaker to initiate de novo the process of no-confidence on April 9 and conclude it the same day.
Thereafter, it was expected to be a smooth sailing and the no-confidence motion decided in a democratic manner and under parliamentary traditions. But there were more surprises to come and bombshells to fall! So April 9 proved no less melodramatic. The nation suffered another ordeal of frenzied actions. Even though the session of the National Assembly was summoned, the Speaker was reluctant to put the no-confidence motion to vote. He dilly-dallied to postpone the voting, so as to evade or avoid its outcome. Quite obviously, he was bent upon violating the Constitution and Court order.
It was getting close to midnight and yet he remained unfazed, without any thought of having to attract the wrath of the Court, in the form of contempt proceedings. Or maybe, he was expecting for something extraordinary to happen! The crisis reached its climax, when news flashed out that the (then) Prime Minister may denotify the incumbent Chief of the Army Staff and appoint his successor. These were most disturbing developments and tense moments, indeed!
In this background the Supreme Court and Islamabad High Court offices were opened around midnight. This, together with announcement of high security alert in Islamabad Capital and prison vans reaching Parliament, were signs for political adventurists to pause and rethink. It was time to give credence to sound political advice to deescalate and avoid venturing into uncharted territory, which may have serious consequences. So the Speaker came to senses. Just minutes before midnight, he returned to his seat and announced his resignation. And whereas, in the absence of Speaker, the Deputy Speaker takes over; however, perhaps perplexed by the day’s events or frightened by the sight of prison vans – whatever – he ignored the Deputy Speaker and called the PML(N)’s Ayaz Sadiq to take over and complete the proceedings. The rest is history.
All’s well that ends well, so goes the saying. However, the late opening of courts is bemoaned and taken exception to by some, including the former PM. There is a general perception that it happened at the behest of the Establishment. In response, the two chief justices gave reasons for doing so: The Chief Justice of Pakistan defended the move as being for protecting the sacred document, the Constitution. The Islamabad High Court clarified that complaints regarding imminent threat to life or liberty and cases of extreme urgency can be filed on holidays and beyond working hours. The Court conceded that two requests were received: one, from the President, Supreme Court Bar Association, seeking implementation of the Supreme Court order; and the other, a petitioner, seeking a preemptive order to restrain the (former) Premier from denotifying the Army Chief. The Chief Justice also defended the action and added that had the judiciary stood firm and courts reopened after the regular timings, the 1977 and 1999 coups d’etat could have been averted.
This is perhaps going farther than reality would admit or past practices confirm. But the respected Chief Justice, known for his valorous role of standing up to the Military Dictator during the Judges Restoration Movement, is entitled to his opinion. His statement is a welcome expression of determination not to melt down before any political/military onslaught and stand firm on protecting the Constitution.
Notwithstanding the clarifications, the fact remains that the late-opening of courtrooms is not normal. That the courts retain their powers and jurisdiction at all times – day or night – is beyond cavil. Thus, the Judicial Magistrate is available 24 hours to grant remand of detenus produced by police. This is so, because under the law and Article 10 of the Constitution, police cannot detain a person beyond 24 hours, without authorization of the Magistrate. Similarly, stay orders are issued by judges, outside the courtrooms and prescribed working hours. Nothing prevents the courts from functioning beyond working hours and they often do, to exhaust the cause list. Chief Justice Iftikhar Muhammad Chaudhry used to do so. Whereas the working hours in the Supreme Court are 9 am – 1 pm, his bench would work till 4 – 5 pm, and even beyond. Late sittings and Sunday workings were also practiced by CHief Justice Saqib Nisar.
Many instances of the courts sitting late or on closed holidays can be quoted: A seven-member Bench of the Supreme Court assembled on 3 November 2007, late Saturday evening (not court working day) and passed a restraining order against the emergency-plus action of Gen Musharraf. However, the Court was cordoned off and no sooner had the judges returned to their homes, than they were placed under house arrest. The order was, of course, disobeyed.
Again, after the judges’ restoration in 2009, a rumour spread that the Prime Minister was about to denotify the restored judges. Thus, the judges assembled late at night in the Court and passed a restraining order. The following day, the Attorney General filed a statement that the Government had no intention to do so.
The odd-time opening of the Supreme Court turned out to be a timely intervention in defense of the rule of law and protection of the Constitution. It helped avert political crisis, chaos and possible derailment of the democratic system and constitutional dispensation. In times of conflict- be it between the legislature and executive– a neutral umpire is required. More so, in backward societies and nascent democracies, such as ours. The judiciary is best placed to play the role.
That is why the framers of the Constitution made the Supreme Court the final arbiter of the interpretation of law/Constitution. It is given the role of settling inter-governmental (Federal/provincial) disputes, advising the President/Government on any question of law and determining the jurisdiction and powers/functions of each organ of the State. This way, compliance with the rule of law and constitutional dispensation is ensured.
Having said so, let it also be stressed that courts are structured and function under the law. Judges are required to keep calm and aloof from political controversies. They have to exhibit an attitude of detachment from witnessing an event, to avoid being prejudiced by what they observe; for otherwise as witnesses to the commission of an offence, they stand disqualified to hear the case. Detachment is necessary for maintaining equilibrium, calm and balance, so as to reach the correct conclusion. The Code of Conduct provides that judges should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law.
