The Supreme Court (SC), in a 3-2 verdict, ruling that elections in Khyber Pakhtunkhwa and Punjab should be held within 90 days, is yet another specimen of judicial overreach and vigilantism in Pakistan. In this case, it has extended to re-writing the constitution of the ‘Judicial Martial law’.
Had this not been the case, why would the Supreme Court (SC), which is not a constitutional court, breach or usurp the constitutional jurisdiction of a constitutional institution.
The question before the SC in the matter of KP and Punjab elections was not if elections should be held within 90 days but who is the authority to decide the date of the election, how will the right of fair and equal representation of people be protected, how will Election Commission of Pakistan (ECP) be held accountable, and the transparency and accountability of all stakeholders, including judiciary.
The full SC judgment must answer the following questions:
Why was the matter of KP and Punjab elections not sent back to the parliament? The preamble of the constitution states: “and whereas it is the will of the people of Pakistan to establish an order. Wherein the State shall exercise its powers and authority through the chosen representative of the people”.
The preamble ends with, “Now, therefore, we the people of Pakistan: Do hereby, through our representatives in the National Assembly adopt, enact and give to ourselves, this constitution.” Thus the power to write or amend rests solely with the parliament.
How does the SC interpret the president’s act of announcing the KP and Punjab election date? The powers of the president of Pakistan are stated in Part III of the constitution. Article 48 elaborates that the president is to act in accordance with the advice of the cabinet. Article 48(2), however, states that “notwithstanding anything contained in sub clause 1, the president shall act in his discretion in respect of any matter in respect of which he is empowered by the constitution to do so and the validity of anything done by the president in his discretion shall not be called in question on any ground whatsoever.”
The president, in the case in hand, in view of the constitutional provision, protection and jurisdiction of the ECP, and under the Election Act 2017, does not hold discretionary power, and is bound by “consultation”. Yet, the president has been exercising outreach of his powers – be it unilateral announcement of date for KP and Punjab elections, dissolution of the National Assembly in April 2022, and judicial reference against Justice Qazi Faez Isa.
He has also admitted, on record, that his orders were inappropriate/unwarranted/wrong. Whose advice was he following? Could direction from his office on critical issues be taken as measured or influenced by someone? It is also on record that the incumbent president has disregarded impartiality and stature by openly admitting to the dictate of the chairperson of his political party, and even visiting his residence upon the chief’s demand.
How will people’s right of fair representation be protected? Digital census is currently being carried out. The importance of the census cannot be over emphasized, as the last census, despite being contested by the provinces, was conditionally accepted to hold the 2018 elections; and agreed in the Council of Common Interest (CCI) that next election would be held on the basis of new census. The CCI also has a constitutional mandate. Its decisions can be over turned only by itself.
The conduct of election in two provinces, which constitutes approximately 60 percent of the population, on the basis of old census will compromise people’s right of fair representation in these provinces. The new digital census will have to be unrolled via new delimitation of the constituencies that is unit of representation for a voter. The exercise took 137 days before the general election in 2018. Under the Election Act 2017, the size of the population in constituencies is to be balanced with the total population of the province. This may also add or delete constituencies or alter the current composition of constituencies, thus directly impacting the composition of National Assembly and provincial assemblies.
The power of the ECP to conduct election is articulated in Article 218 of the constitution. Article 218(3), empowers the commission to “organize and conduct the elections and make such arrangement as are necessary.” The orders of the ECP in this respect are binding as any order of the high court. The government does not have the authority to refuse elections on the basis of inadequate provisions, be it fiscal resources, human resources, administrative support and/or security.
Ideally the SC should elaborate how a constitutional provision of announcing the election dates, which is not stated in the constitution and has a void, becomes binding? Is it not the prerogative of the parliament, not courts? Also, the SC should elaborate how can the constitutional jurisdiction of a constitutional institution i.e. the ECP, in presence of constitutional void/silence, be taken over by the SC and interpreted, when its neither a constitutional court nor has the jurisdiction to legislate or amend the constitution? Doesn’t the parliament have the powers to legislate and amend the constitution?
The decision of the SC has worsened the ongoing political crisis. The Election Act 2017 vests all powers for conduct of the election with the ECP. Under Clause 58, it can change even the announced election schedule. However, the ECP would have to put in writing to inform the president if it invokes this provision but again there is a legal lacuna/silence on what will happen if president does not accept that reasoning? Whose decision will prevail? Would it be taken to the SC again? And if yes what will happen to the Election Act clause 236 and 237.
The dissenting notes state that the issue taken up is not fit to be covered under Article 184 (3) of the constitution that focus on “enforcement of any of the fundamental rights conferred by the Chapter 1 of part II.’ If delay in elections is a violation of fundamental right of representation then conduct of election for 60 percent of population on old census is in the same vein.
It would be interesting to see how the SC justifies its administrative overreach in taking over powers of the high courts where the matter was being debated.
These questions merit elaboration. Justice must be seen to be done.
Had this not been the case, why would the Supreme Court (SC), which is not a constitutional court, breach or usurp the constitutional jurisdiction of a constitutional institution.
The question before the SC in the matter of KP and Punjab elections was not if elections should be held within 90 days but who is the authority to decide the date of the election, how will the right of fair and equal representation of people be protected, how will Election Commission of Pakistan (ECP) be held accountable, and the transparency and accountability of all stakeholders, including judiciary.
The full SC judgment must answer the following questions:
Why was the matter of KP and Punjab elections not sent back to the parliament? The preamble of the constitution states: “and whereas it is the will of the people of Pakistan to establish an order. Wherein the State shall exercise its powers and authority through the chosen representative of the people”.
The preamble ends with, “Now, therefore, we the people of Pakistan: Do hereby, through our representatives in the National Assembly adopt, enact and give to ourselves, this constitution.” Thus the power to write or amend rests solely with the parliament.
How does the SC interpret the president’s act of announcing the KP and Punjab election date? The powers of the president of Pakistan are stated in Part III of the constitution. Article 48 elaborates that the president is to act in accordance with the advice of the cabinet. Article 48(2), however, states that “notwithstanding anything contained in sub clause 1, the president shall act in his discretion in respect of any matter in respect of which he is empowered by the constitution to do so and the validity of anything done by the president in his discretion shall not be called in question on any ground whatsoever.”
The president, in the case in hand, in view of the constitutional provision, protection and jurisdiction of the ECP, and under the Election Act 2017, does not hold discretionary power, and is bound by “consultation”. Yet, the president has been exercising outreach of his powers – be it unilateral announcement of date for KP and Punjab elections, dissolution of the National Assembly in April 2022, and judicial reference against Justice Qazi Faez Isa.
He has also admitted, on record, that his orders were inappropriate/unwarranted/wrong. Whose advice was he following? Could direction from his office on critical issues be taken as measured or influenced by someone? It is also on record that the incumbent president has disregarded impartiality and stature by openly admitting to the dictate of the chairperson of his political party, and even visiting his residence upon the chief’s demand.
How will people’s right of fair representation be protected? Digital census is currently being carried out. The importance of the census cannot be over emphasized, as the last census, despite being contested by the provinces, was conditionally accepted to hold the 2018 elections; and agreed in the Council of Common Interest (CCI) that next election would be held on the basis of new census. The CCI also has a constitutional mandate. Its decisions can be over turned only by itself.
The conduct of election in two provinces, which constitutes approximately 60 percent of the population, on the basis of old census will compromise people’s right of fair representation in these provinces. The new digital census will have to be unrolled via new delimitation of the constituencies that is unit of representation for a voter. The exercise took 137 days before the general election in 2018. Under the Election Act 2017, the size of the population in constituencies is to be balanced with the total population of the province. This may also add or delete constituencies or alter the current composition of constituencies, thus directly impacting the composition of National Assembly and provincial assemblies.
The power of the ECP to conduct election is articulated in Article 218 of the constitution. Article 218(3), empowers the commission to “organize and conduct the elections and make such arrangement as are necessary.” The orders of the ECP in this respect are binding as any order of the high court. The government does not have the authority to refuse elections on the basis of inadequate provisions, be it fiscal resources, human resources, administrative support and/or security.
Ideally the SC should elaborate how a constitutional provision of announcing the election dates, which is not stated in the constitution and has a void, becomes binding? Is it not the prerogative of the parliament, not courts? Also, the SC should elaborate how can the constitutional jurisdiction of a constitutional institution i.e. the ECP, in presence of constitutional void/silence, be taken over by the SC and interpreted, when its neither a constitutional court nor has the jurisdiction to legislate or amend the constitution? Doesn’t the parliament have the powers to legislate and amend the constitution?
The decision of the SC has worsened the ongoing political crisis. The Election Act 2017 vests all powers for conduct of the election with the ECP. Under Clause 58, it can change even the announced election schedule. However, the ECP would have to put in writing to inform the president if it invokes this provision but again there is a legal lacuna/silence on what will happen if president does not accept that reasoning? Whose decision will prevail? Would it be taken to the SC again? And if yes what will happen to the Election Act clause 236 and 237.
The dissenting notes state that the issue taken up is not fit to be covered under Article 184 (3) of the constitution that focus on “enforcement of any of the fundamental rights conferred by the Chapter 1 of part II.’ If delay in elections is a violation of fundamental right of representation then conduct of election for 60 percent of population on old census is in the same vein.
It would be interesting to see how the SC justifies its administrative overreach in taking over powers of the high courts where the matter was being debated.
These questions merit elaboration. Justice must be seen to be done.