Protecting The Constitutional Right To Vote

Protecting The Constitutional Right To Vote
Pakistanis, I am alarmed!

We (ironically) boast as the nation which is all too often accused of ‘ball tampering’ in cricket, yet unapologetically smirk about our cleverness, and nowadays we are trying to yet again gain notoriety for ‘constitutional tampering’ of our own ‘precious right to vote,’ which is guaranteed in any functional parliamentary democracy.

We embark upon this diabolical path without pausing to think about the consequential harm the success of any ploy to this affect will have upon democracy and the proper functioning of fundamental rights enshrined in Chapter 1 of Part 2 the Constitution and our ‘social contract with the state of Pakistan.’

Voting in elections to elect parliamentarians forms the very basis of our relationship with Pakistan, and is in itself central to us identifying as Pakistanis. Institutionally, Executive branch departments and independent bodies like the ECP or interim governments of KPK/Punjab that need to ‘collude’ (read: consult and collaborate) to facilitate and hold timely elections in the provinces are deeply embedded in colluding together to usurp, subvert or abrogate cornerstone constitutional limits by intentionally and manifestly twisting clear-cut provisions to ‘indefinitely’ withhold the electoral process. This is done in lieu of political expediency and grave self-interest of a handful individuals being weighed above and beyond the collective interests of the state, its electorate and citizenry at large.

A simple and literal reading of Article 224 dictates that the elections be held “within sixty days” if the national/provincial assemblies complete regular terms and timely expire, however since the assembly of KPK stood dissolved on 18th January and Punjab on 14th January by operation of law, it led to both the provincial Governors invoking Article 105(3) that reads; “Where the Governor dissolves the Provincial Assembly, he shall (a) appoint a date, not later than ninety days from the date of dissolution, for the holding of a general election to the Assembly, and (b) appoint a care-taker Cabinet.”

Caretaker cabinets were sworn in by the Governors by using 105(3)(b) but some dark (un)constitutional magic is allowing them to bypass the time bound limitation of giving a date for holding of elections in the same provinces under Article 105(3)(a). The President of Pakistan stepped in to try and resolve the small procedural issue by using substantive powers under Section 57 of the Election Act 2017 and gave 9th April 2023 as the date to hold elections, while LHC Justice Jawwad Hassan has already ordered the ECP to immediately move ahead and “conduct and organize (these) elections within the ninety days” statutory limit.

However, both efforts went unheeded by the concerned Governors and ECP who demonstrated ill-intent and hostility towards the efforts, and finally the matter has become precariously sub-judice in front of the Supreme Court of Pakistan, which has exercised suo motu judicial review powers under Article 184(3) which grants ‘Original Jurisdiction to the Supreme Court’ to decipher “questions of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part 2 of the Constitution.”

The threat to the Constitution is manifestly real and imminent as lame excuses and false interpretations are being used to pass the buck. Constitutionally, the buck stops with the guardians of the Constitution who preserve fundamental rights and strike down executive or legislative steps taken against the letter and spirit of the codified Constitution of Pakistan (1973). All eyes are glued on the SCP, and the nation anxiously waits in anticipation of a historic verdict by our constitutional guardians that will end the stalemate, safeguard our right to vote and pull the nation out of this quagmire.

Furthermore, the honourable judges must showcase restraint by not giving a tit for tat reply whilst a tirade of unfounded defamatory allegations and contemptuous propaganda is venomously spewed by those who stand to lose out most by proper implementation of the constitution.

“Judges should speak through their orders and judgements” and not stoop down to the same level, rather their verdict must be expedited as the politically sovereign electorate of KPK/Punjab is on a clock, waiting to take the same usurpers and propagandists to task by casting their votes against them in upcoming elections. Quick decision-making will further democracy and constitutionalism.

Indeed, ‘democracy is the best revenge” against dynastic, despotic, autocratic, authoritarian, feudal or fascist mindsets that keep trying to hog onto power and obsess over exerting total control.

As a voter registered in Lahore and a man trained in the art of constitutionalism, I have standing in the matter in question. Only politicians that come into power corridors backed by the legitimacy that flows from winning in a fair and free electoral ballot can enact long overdue reforms and implement their manifestos, and in turn grant relief and respite to an overburdened and disoriented population.

We must not try and re-invent the wheel, rather should learn from the mother of parliamentary democracy in Britain, whereby calling for snap elections is a well-respected bold tool for gauging electoral sentiment and support, and completely in line with the soul and spirit of true democratic culture.

Historically, when the balance of power needed to be settled between the House of Commons and House of Lords, assemblies were dissolved and snap elections were called entrusting the electorate to decide future course of action. It was the electorate that voted and mandated a larger majority in the Commons enabling the passing of Parliamentary Acts 1911 and 1949 which led to the aristocracy in the Lords being stripped of their blocking veto power in legislative matters, shrinking their power to only a delaying house. Later, the judiciary forever settled the matter in A.G vs. Jackson (2005) in line with the electoral mandate.

Recently, when British citizens were fiercely divided over giving up membership of the European Union, twice snap elections were called in 2017 and 2019 and the judiciary re-affirmed the resultant decision making by their historic verdict in R (Miller) v Secretary of State for Exiting the European Union.

Undoubtedly, the dissolution of these provincial assemblies in Pakistan is a novel democratic endeavour and hence was bound to run into roadblocks; however, the process of change is inevitable and constant. In Pakistan, the Constitution lays down institutional duties and separation of powers between the three institutions of the state – the executive, legislature and judiciary. Therefore, as it would be done in any civilised society, our institutional framework must work in tandem to uphold macro changes translated by electoral mandate. Time is upon us to resolve political issues by the ballot rather than the bullet.

The office of the ECP and Governors, even though independent in their sphere, are after all part of the executive branch and hence attract judicial review of their decision making by the highest judicial forum of Pakistan and a 9 member larger bench of the SCP has rightly been constituted to resolve the stalemate.

Pakistan is polarized and divided and needs an outlet which these elections can provide. It is now up to the guardians of the Constitution to illuminate the way forward, help the status quo forces overcome their anxiety and develop an appetite for change leading to progress and adequate dealing of social ills and economic problems. We must take the plunge, trust the masses and accept their mandate thereby strengthening our democracy and state.

The Constitution is precisely there to resolve such matters within the confines and dictated limitations of the law. Any violation, abrogation or digression from the simpleton dictates of the Constitution to hold routine general elections would most definitely lead to a breakdown of the state apparatus and absolute lawlessness, chaos and anarchy.

The Supreme Court holds finality over interpreting complex Constitutional matters. A heavy historical burden of responsibility now rests upon the contemporary SCP to undo the happenings of the 1955 Molvi Tamizzuddin Case which led to the cancerous birth of the doctrine of necessity.

Consequentially, if elections are not held in KPK/Punjab within the Constitutional limit of 90 days, on day 91, the interim executive branch structures and functionaries become unequivocally unconstitutional and hence will lack the legal backing needed for the executive to make and implement policy. The alternative to holding elections within the stipulated timeframe hence becomes de facto authoritarianism that raises the buried corpse of the doctrine of necessity which bypasses the need for dignified legitimate exercise of authority over citizens derived from expression of public mandate in general elections by the electorate and supplants it with brute effective control by force as the only criteria needed to remain in charge.

Essentially, we would be paving the way for dictatorship, as then suspension of elections under one pretext or another would become a precedent, uprooting parliamentary democracy and constitutionalism once again in Pakistan. Such a misstep would thrust the state face first into the dark ages of regression, stunting its evolution. Massive instability, vulnerability and isolation from regional and international community and forums would follow, therefore the constitution must prevail and my right to vote must be safeguarded.

The writer is an LLM from Queen Mary University of London as a Chevening scholar. He studied political philosophy at the University of Oxford, is a practicing attorney and lecturer in Constitutional Law.