The Supreme Court (SC), in a 3-2 verdict, has decided on a contested constitutional question that who has the constitutional responsibility and authority to appoint the date for the holding of a general election to a Provincial Assembly.
The honourable court has held that, "[i]n situations where the Assembly is dissolved by an order of the Governor, the constitutional responsibility of appointing a date for the general election that must follow is to be discharged by the Governor as provided in terms of Article 105(3)(a) of the Constitution". Further, the court concluded that, "[i]n situations where the Assembly is not dissolved by an order of the Governor, the constitutional responsibility of appointing a date for the general election that must follow is to be discharged by the President as provided in terms of s. 57(1) of the Elections Act, 2017."
With due respect, it may be argued that in both the aforementioned cases, the Governor is to announce a date for the general election to a Provincial Assembly. It is submitted that the interpretation of constitutional provisions requires due consideration of the rules of interpretation, the scheme of the constitution and the principles of parliamentary or constitutional democracy.
Given the scheme and federal structure of our constitution and the canons of interpretation (coherent reading of constitutional provisions) of articles 48 (5) (1) (a), 58 (1), 112 (1) and 105 (3) (a) of the constitution and section 57(1) of the Elections Act, 2017, the Governor is to announce a date for the general election to a Provincial Assembly and the President is to appoint a date for the holding of a general election to the National Assembly.
Thus, the President’s announcement for the elections of the Punjab Assembly is unconstitutional and the SC’s opinion, to this extent, is contestable. Who would appoint a date for the general election to the National Assembly, in a situation where the National Assembly is not dissolved by an order of the President? The SC seemingly ignores to address this important constitutional question.
Further, while appreciating the approach of the honourable court as to the parliamentary democracy and the importance of holding general elections as a sine qua non for parliamentary democracy, it may be argued that the independence of the judiciary and provincial autonomy also constitute the conceptual content of parliamentary democracy. One may agree with the honourable dissenting judges that "once a constitutional issue is pending before a Provincial High Court, keeping in view the Federal structure of our Constitution the autonomy and independence of the apex provincial constitutional court, should not be readily interfered with rather be supported to strengthen the provincial autonomy and avoid undermining the autonomy of the provincial constitutional courts."
A contrary approach appears to challenge the salient features of the constitution such as the parliamentary democracy, the provincial autonomy and the judicial independence of both the SC and the provincial high courts. As the matter was pending before the two provincial high courts, it would have been more appropriate to direct these courts to decide it within a specific time.
Finally, though the majority judgment is binding on all other courts and executive authorities in Pakistan, the additional notes of honourable Justice Yahya Afridi, Justice Athar Minallah and the dissenting note by Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail provide an illuminating perspective of constitutional interpretation. It also highlights an immediate need for structuring the exercise of judicial power under article 184 (3) of the constitution. As the SC is the last forum for adjudication, the issues about its original jurisdiction, the formation of benches and the fixation of cases need to be addressed by the judicial policymakers to maintain public confidence in our justice system. Otherwise, the law's empire shall collapse.