Over the past ten days, the question dominating all political discourse is: what will happen now? Will the Prime Minister, Chief Minister as well as their respective assemblies fold under PTI’s pressure, and resign their offices? Alternatively, will PTI’s dharna and the festive ‘Azadi Jashan’, eventually run its course to futility? Will PTI’s leadership, and more importantly its supporters, tire of songs and dancing, and ultimately disperse into a silent surrender? Or, most disturbingly, will a third force – heck! Let us call it by its name, the Army – interfere to pick a side, and either send the Prime Minister packing (which is an all too familiar repeat of our checkered history), or send Imran Khan and his supporters home?
The answers to these questions, while engrossing and enormously significant, are all political in nature. Depending on who one asks, the constitutional and legal framework may not form the commanding narrative in the response.
Away from these political questions, there is also the much less argued, but far more important issue of whether or not the PTI demands, and their consequences, meet the test of constitutionality?
In order for this to be done, it is pertinent to first examine and simplify the crux of the PTI’s demands. As articulated by Imran Khan, PTI wants 1) the Prime Minister, Chief Minister, and the Election Commission to resign 2) structural reforms of the electoral process to take place, and 3) a fresh general elections to be held under the reformed electoral paradigm. The sequence of these demands is just as important as their substance. It is the express desire of Imran Khan and PTI that new elections must be held under a restructured electoral framework, and that any reform of the electoral laws must take place post- Nawaz Sharif, under a neutral (technocratic?) government.
Viewed through the constitutional prism, the mere act of seeking the Prime Minister’s resignation is not constitutional per se. At the very basic level, the constitutional Freedom of Speech (Article 19) and Freedom of Assembly And Association (Article 16 and 17) permit every citizen to voice a demand of his or her choice, subject to minor restrictions in the interest of public order, Islam or morality. This right to seek a resignation deepens in nature when being sought by a political leader, accompanied by a large number of law-abiding citizens who have participated in the electoral process. And if the Prime Minister, acting through his own volition, tenders his resignation in response to these demands, triggering the process of fresh elections, no substantive violation of any constitutional Article would result.
However, while this model of seeking a dismissal of the government does not violate any particular provision of the Constitution, still, ironically, it almost obliterates the entire ethos of our democracy. It runs the pervasive risk of permanently debilitating the constitutional term of an elected government, by setting a trend that any political party, or even a militant group, who can gather enough people on Constitution Avenue in Islamabad, has the right to overthrow the government. And who would decide which group or party has summoned the largest number of supporters in Islamabad? There is no empirical method, other than the general elections, through which the sovereign ‘will of the people’ can be measured. By setting this precedent, would we not be inviting, and sanctifying, future would-be-saviors to gather their supporters in our streets, demanding an imposition of their preferred legal regime? Are we really so naïve as to assume that all such adventurers would come in peace, bearing no arms? Is it not true that organizations such as Jamat-ud-Dawa, or even TTP, can gather a crowd larger than PTI’s ‘Azadi Square’? And would we ever be in a position to deny their methods tomorrow, if we support Imran Khan’s method today?
The other two PTI demands, electoral reforms done under a technocratic (interim) government followed by general elections (in that order), are unconstitutional, as well as a violation of the democratic spirit. Per our constitutional ethos, as interpreted by the superior Courts, an ‘appointed’ interim government (which does not enjoy the votes and mandate of the people) cannot tinker with the fundamentals of our Constitution and democracy. Being a non-representative government (a government which has not been voted in by people through elections), the interim setup can neither pass a Constitutional Amendment (changing the character or role of the Election Commission) nor amend the existing electoral laws in a manner that materially changes the scope of the existing enactments. As such, this would amount to an overriding of the ‘will of the people’.
It has been suggested that a “constitutional cover” can be given to PTI’s demands, through the promulgation of an Ordinance (changing the electoral structure) by the President of Pakistan, whose office will not be affected by the resignation of this government. And that subsequently, the government elected under the new electoral regime can validate the Ordinance, or provide it with constitutional protection. This argument, while expedient and ingenious, is hopelessly undemocratic. Adopting it would mean that a (fresh) government, which has been the beneficiary of the electoral reforms, validates these reforms, expost facto. This course of action would offend the entire fabric of natural justice, including the age-old principle that ‘no man should be a judge of his own cause’.
Necessarily, a constitutionally adherent process of fulfilling PTI’s demands of conducting electoral reforms before general elections, requires that an elected parliament (in this case, one in which PML(N) holds majority) enact the electoral reforms, under which fresh elections are subsequently conducted. And Imran Khan has reiterated, time and again, that any electoral reforms, held under the Nawaz Sharif government are unacceptable to PTI.
Result? A constitutional deadlock.
Something has to give. At least, politically. The hope, however, is that in the process of political give-and-take, we do not end up surrendering our fidelity to the Constitution itself. The fact that Imran Khan has been able to gather a large number of people for political action is encouraging for the process of democracy in Pakistan. The energy and passion of these people must be harnessed for the larger cause of both democracy as well as constitutionalism in our country.
The onus of ensuring that constitutionalism is not sacrificed at the altar of politics, rests almost entirely with the leaders of the Inquilaab and Azadi March. No one wants to hear the deafening thump of Khaki footsteps, creeping up on the democratic process. Because, if that were to happen, it would not matter which side of the partisan divide you belong to. All of us will have to answer for it to our children, and their children after that.

 The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard  Law School.

saad@post.harvard.edu

@Ch_SaadRasool