Love Or Betrayal: A Constitutional Story

Love Or Betrayal: A Constitutional Story
From commonalities of origin since about 75 years ago, to aspirations of purpose till the end of times, a few other characteristics can be compared between Pakistan and Israel. Some coincidence then that the two nation-states of the UN era, which were founded on religious lines and adopted British parliamentary system of democratic governance, face the ugliest détente between their respective Parliament and Judiciary. Comparison herein is not a critique of long established Pakistan policy on Israel or a suggestion to recognise it.

Binyamin seeks greater power for his coalition enabling it to, among others, overturn Supreme Court decisions and have greater role in judicial appointments. As for the latter, Pakistan has ‘been there, done that’! The Supreme Judicial Council and the Judicial Commission of Pakistan evidence the great achievement or the lack thereof in their respective constitution and workings. Let’s see if and what he learns from the Pakistan experience.

But, his insistence on Parliamentary dominance vis-a-vis the Judiciary is developing on amazingly similar lines. He deems law reform necessary to curb excessive powers of ‘unelected judges’. No surprise that his opposition perceives it as a ploy to “destroy” the system of checks and balances; an excuse to concentrate political power in the hands of a “corrupt ruling coalition”; and that though some measures may be good, he (like the PDM counterpart) is eminently conflicted because he too faces trial on corruption charges.

But, there is one stark contrast. The President there, who too, is a ceremonial figure head, endeavours - unlike his counterpart at the “Muslim Zion”, to act as an objective unifying force to avoid circumstances that may lead to “a real civil war” because he reckons the abyss “within touching distance.”

Our President unfortunately, who may well go down in our history as the most partisan President has been unable to play any role to de-escalate political tensions. Rather, he has expressed readiness to offer services to initiate the constitutional Presidential Reference to the Supreme Court that culminated in one of the most controversial decisions - even by Pakistani standard of scandalous endearment with inventive constitutional theory.

While Herzog opted to come on national TV to make proposals to call off the stand off, our worthy Head of State has reduced himself to a partisan political tweeter! Herzog, on the other hand, suggests that while the Parliament should not be able to overturn Supreme Court rulings, judges should not be allowed to overturn major legislation (“Basic Laws”), which, however, would require a parliamentary supermajority to pass.

In essence what Herzog’s proposals mean is that the Parliament and the Judiciary recognise the limits of the exercise of their respective power; remain conscious of the no man’s land carved out by centuries of constitutional theory and practice not just the written text of the constitutional framework; and each endeavour to assist in the much needed overhaul of the country’s legal system to secure better, fairer and transparent delivery of services to the people. After all, it is for the benefit of the order of existence as a state that political governance in Pakistan is held as a “sacred trust”.

It would have been better, therefore, for the Supreme Court of Pakistan not to have involved itself in finding resolution by a mechanism, which is derided by political players as ‘panchayat-like’, particularly after it undermined, though tangentially, the PM’s support in the Parliament in a written order requiring allocation of funds for election, triggering the wholly unnecessary vote of confidence by PM Sharif. Moving forward with the threat of proceedings of contempt of Court or disqualification of elected representatives or any effort by the Parliament to summon a select group of Judges to the Privileges Committee is simply egotistical and counterproductive. It will serve no purpose or play a positive role in resolving the deepening crisis. Please, let’s not make it a road rage case, where drivers fight seldom because they have hit each other but more because one, in the heat of the moment, can’t contain the expletive!

I was taught decades ago, like all young lawyers with big dreams are today: when the issue gets complicated, go back to the basics to reconstruct foundations of a logical construct. And, keep the eye on the ball!

Inciting expressions like “judicial overthrow” or “undermining parliament” or “constitutional betrayal”because 90 days have passed and other suchlike verbiage only represents issues that have spawned due to apparent mishandling and manifest shortsightedness - and perhaps, desires of a few who seek personal aggrandisement! Whereas, the proverbial ball, whereupon the eye must be kept at all times, is holding free and fair elections soonest possible.

So, what are the core requirements of holding a free and fair elections? Before considering the answer, some basic notions on point and a snapshot of timeline and events to set the impasse in context.

Foundational notions

Consider the following:

1. Holding periodic elections is a defining character of any democracy. Article 21(3) of the Universal Declaration of Human Rights, 1948, which is recognised in Pakistani legal order, embodies this elementary principle. However, Article 4 of the International Covenant on Civil and Political Rights, to which Pakistan is a party, provides that where a “public emergency … threatens the life of the nation” (emphasis added) whose existence is officially proclaimed, “measures derogating from their obligations … to the extent strictly required by the exigencies of the situation” may be resorted to by member states.

2. Hence, holding elections within prescribed timelines specified in the Constitution must not be seen as absolute! Even the controversial SC opinion to hold elections does not deem the timeline absolute because it speaks of barest minimum deviation. Thus, timeline is undoubtedly preferred! The 90 or 60 day debate, which has now become redundant by lapse of time, was destined to be uneventful any way, for changing times need to be adapted with sincerity of purpose. Reading the demonised doctrine of necessity only helps political jingoism and promotes utter misconstruction or mischaracterisation of the predicament. For instance, threats to human life and security midst Coronavirus affected at least 69 jurisdictions, who decided to postpone elections. 19 jurisdictions decided to hold them nevertheless but only 9 could do it. In person voting too was suspended by a court.

3. Scant academic and judicial literature on point classifies this phenomenon as the postponement paradox. On the one hand, postponing elections breaks institutional certainty, which in turn may trigger democratic breakdown and undermine trust in the system, while on the other hand, hasty holding of elections poses a major threat to equal opportunities for deliberation, contest, participation, and election management. It may well be an artifice of a brazen power grab.

4. Let’s be objective, Pakistan is not confronted with instances that qualify humanitarian postponements - on account of natural or unforeseen disasters. Likewise, impecuniosity of the state machinery is no justification of postponing elections. And, there is not enough in public view that warrants a postponement of elections on the uncanny touchstone of security considerations.

5. Constitutional crises, political stalemates, need for the placement of transitional frameworks, widespread compromise of integrity, technical and logistical issues and even untimely demise of candidates are some legitimate reasons recognised from down under in New Zealand and up to some countries in Europe, and again down and across some African nations and then over the isle in to England and Ireland and also across the Atlantic.

6. There is indeed precedent on delay in general elections to learn from. Sad that till date the Supreme Court has not been assisted to consider what all warrants consideration in resolving the current impasse. Obviously, consideration is warranted in the context of our own socio-political milieu. Make no mistake, the burden to provide a justifiable rationale for delay in general election rests with the incumbent government. Other than general elections across Pakistan on the same day, there is not even one other reason to deliberate upon.

7. The most instructive precedent for the Pakistani audience perhaps may be lie in Macedonia - where institutional breakdown prevented holding elections not too long ago. What we see today in Pakistan behind the ugly confrontation between the Parliament and the Judiciary is nothing but manifestation of an institutional breakdown.

Big Bang and ensuing pandemonium

Without mincing much:

1. First cosmic blast occurred around February 21, when the men who matter declared their intent not to interfere in politics. Earliest litmus test, perhaps, became apparent when Mr Gillani returned as the successful candidate in Senate elections, instead of ruling party’s nominee, Mr Hafeez Sheikh. That close to a dozen and a half PTI votes went the other way sent jitters up the PTI spine. As allegations of lacking majority in Parliament gained momentum, PM Khan did not waste much time to secure a vote of confidence to demonstrate ostensible authority.

2. But then, when Mr Gillani lost to Mr Sanjrani in the controversial Chairman Senate’s election, misgivings resurfaced about establishment’s involvement in politics. Mr Justice MinAllah’s, then CJ at the Islamabad High Court, refusal to interfere in parliamentary affairs lent further wind to the notion that we had returned to days of yore where non-interference by the establishment was a myth.

3. Soon thereafter, the unthinkable occurred. Following Core Commander’s Conference in October 21, tectonic shuffling of portfolios set the ball rolling or say, “A Series of Unfortunate Events” unfolded. PM Khan initially resisted the shift but eventually relented by mid December 21. It now transpires that Mr Zardari had first indicated to the Sharifs that Mr Shahbaz Sharif be PM because the men who mattered had a liking for him and any ways, their party held largest number of seats in opposition benches.

4. It was following PM Khan’s surprising visit to Russia, however, that the Vote of No Confidence against him came through in March 22 (VoNC). PTI responded, among others, by galvanising Mr Alvi to file the Presidential Reference to the Supreme Court, which wielded a threat of life-time ban, not just de-seating of defectors.

5. The Pakistan Bar Council was quick to jump into the fray. The then Attorney General, Mr Khalid Javed, assured the Court that there will be no impediment to voting by members but the Court ought to entertain the Presidential Reference and clarify the questions put to it. Meanwhile, Speaker Asad Qaiser dilly dallied on the VoNC before it was rejected as foreign driven. After PM Khan moved to dissolve the National Assembly and the President issued the notification, reportedly, 12 judges of the Apex Court convinced CJ Bandial to take notice of proceedings under Article 184(3) as well.

6. After fast paced proceedings, a 5 member Bench of the Court rendered unanimous decision that set aside Mr Suri’s ruling, PM Khan’s advice of dissolution and the President’s notification thereof. And, then, as they say, Me Khan became PM in history.

7. Thereafter, pandemonium was let loose in the Punjab Parliament and the saga of PTI resignations played out ad nauseam at the National Assembly as well. Then came the controversial opinion of the Supreme Court in the Presidential Reference, which is widely perceived as having changed the goal post. Eventually, provincial assemblies in Punjab and KP were dissolved in obvious political gamesmanship.

8. Since PM Sharif assumed office, there have been, no denying, flippant actions from the government. Regrettably, the caretaker government in Punjab has tread in similar vain. But then, the courts have proven beyond doubt that former PM Khan is indeed the “favoured child of the law”. He has been afforded concessions that no other political big wig, let alone the ordinary accused parties, could even dream of. Discrimination between politicians and other accused parties aside, such treatment by courts is capable of eroding confidence in fairness of the justice system and much needed faith in judicial equanimity.

Core constituents of free and fair elections

Reverting to the issue, the above notwithstanding, there are at least the following 4 core ingredients for conduct
of a free and fair election - any where in the world:

  • Opportunity to the public to undertake informed deliberation on issues that confront the state. The widening reach of media and social media in a country with over 80% tele-density may help check this box. Yes, it is for the voter to sift the relevant from the irrelevant and the fake from the real.

  • Equality of participation across the country. This means ensuring access to voting booths to secure maximum societal participation - across genders and demographics. This has been a serious concern in provinces other than Punjab. There isn’t sufficient information in public view to satisfy that the usual discrepancies will have been reduced.

  • Equality of contest. Pakistan has notorious credentials in this respect. Sadly, the judiciary has played an unholy part in not affording participants/candidates a level playing field. Other than cases of apparent false declarations or fake degrees or other clear cut grounds such as citizenship, the witch hunt must end. FIA, NAB, ANF and the like should not be allies in eliminating contestants. Let the electoral laws be the fair measure. Subject to compliance with electoral laws, Mr Khan and messers Sharif must be allowed to contest elections. Yes, the crass practice of contesting elections from tens of constituencies needs to be better regulated and no one be allowed to make a mockery of the electoral process.

  • Provision of a transparent and effective electoral management system. This is where the Election Commission comes in. It must not only ensure adoption and compliance with delineated institutionalised rules but ensure certainty in application of these rules with fear or favour. Unfortunately, certainty of outcome has been the single most prominent victim in the Pakistan justice system. There is no room for tampering for preference or organising “zombie like elections”.

Now, a possible way forward? If you agree, read on!

First and foremost, the President of Pakistan, who has failed to represent the unity of the Federation ought to step down. If he doesn’t gracefully resign, PTI Executive Committee must summon the necessary wherewithal to pay this due. If he feels he’s done nothing to deserve it, still, please leave. This is the least you can do to
Pave way for effective resolution.

Second, PDM and all ought to join heads to find a consensus candidate for the President. There is no dearth of eminent and qualified non-partisan personalities bearing international recognition in smaller provinces. No worthy Judge, General or Journalist please! If we don’t do this now, fasten the seat belt for another ugly debacle viz. appointment of the President coming July.

Third, the consensus President, not the tainted Chairman Senate should mediate the PDM-PTI representatives in agreeing to a date for general elections - national and provincial. Such parleys cannot keep the ECP out.

Fourth, the Supreme Court needs to become more inclusive and collegiate in its inner workings. The CJ is first among equals but any one who has been to court knows, he is the last to enter the court room to take his seat.

Last but not the least, it is the Election Commission that must spearhead conduct of free and fair elections. As has been done over decades, it is time to further empower the ECP and hold it accountable to a higher demonstrated ability and calling. The Courts must trust ECP with due discharge of its constitutional duties, and intervene only as the election laws foresee. The errant resort to Article 184(3), the nation must not be brought to bear.

End note: There will be no winner in this feud. People of Pakistan, already reeling, are the ultimate losers any way. Parliamentarians and Judges ought to resist delivering the final knockout punch, ought to pull back and clear no man’s land. We the people must pick ourselves up and play the due role in getting our country back on its feet. Lest, we wish the triple one to the rescue!

The author is an advocate of the Supreme Court of Pakistan and is based in Islamabad