EDITORIAL: The Supreme Court’s decision in the suo motu case regarding elections in Punjab and KP (Khyber Pakhtunkhwa) is likely to go down in history as one of those verdicts that paved the way out of an impending constitutional crisis yet also raised fresh questions about the way the judiciary handles constitutional issues and even exposed worrying divisions within its ranks.
The matter of utmost importance is that it has settled, once and for all, the debate about when a governor or the president must announce the dates for elections, and that there is no way around what is clearly stipulated in the constitution.
There is, nor can there be, any doubt, as duly noted in the written order, that “There can be no parliamentary democracy without Parliament or the provincial assemblies.
And there can be neither Parliament nor provincial assemblies without the holding of general elections as envisaged, required and mandated by and under the Constitution and in accordance therewith”.
Elections in Punjab and KP must, therefore, be held in the stipulated 90-day period, with ECP (Election Commission of Pakistan) consulting with the president in the former case and with the provincial governor in the latter to settle the final dates. And that ought to be the end of the matter. But will it be?
Even as the requisite institutions and agencies now spring into action and prepare for the elections, there is still enough dissatisfaction on the manner in which this case was executed as well as the written order, especially the dissenting note, to keep this pot burning a little longer.
The government has decided against filing a review petition, but it has already made much noise about the composition of the original nine-member bench, for leaving out the senior puisne judge and another judge and including one who had become controversial after a leaked audio and subsequent reference against him. And even though the latter later recused himself, the first two were still not made part of the reconstituted, five-member bench.
More ominously, the law ministry is clearly tilting towards the argument implied in the dissenting note – despite the clear 3-2 verdict – that dismissal of the suo motu proceedings by two honourable judges that were part of the original nine-member bench but not the five-member bench was, in fact, “part of the record of this case”.
And it’s already spinning the verdict into a 4-3 decision against the CJ’s outreach. That, in turn, implies that even though the government is bound to implement the SC’s decision, it is still likely to leverage the other main point in the dissenting note, that “the same constitutional and legal issues seeking the same relief are pending and being deliberated upon by the respective Provincial High Courts in Lahore and Peshawar”, to reinforce its counter-narrative.
One can, therefore, expect it to show a lot of concern for “the autonomy and independence of the apex provincial constitutional court” in the coming days.
There’s also one point in the verdict, in paragraph 14, sub-paragraph (a), which notes that in Punjab “it may not be possible to meet the 90-day deadline” due to the “delay in the emergence of the date for holding the general election”, which could bring the matter back to the honourable court.
Because in that case it directs ECP to “propose a date for the holding of the poll that deviates the barest minimum from the aforesaid deadline”.
And since the court chose not to quantify that “barest minimum” period, and ECP has been raising concerns about the digital census that will take months to complete, in addition to its financial and security constraints, it might interpret this vague directive very differently than the opposition clamouring for an immediate election. So we could see this issue do one more round in the halls of judgement.
The law has spoken, no doubt, and any effort to resist it, will and should be an exercise in futility. Still, it would have been better if the top court in the land had cleansed this matter of all controversy instead of letting some of its actions, which were completely unnecessary, raise yet more questions.
Copyright Business Recorder, 2023
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