This article was published in Dawn on Apr 05, 2023, at the following link
The Supreme Court has finally spoken on and quashed the Election Commission of Pakistan’s decision of March 22 to delay the Punjab Assembly election to October 8.
But has it?
There is a powerful view, not only among politicians and legal experts, but also some judges of the Supreme Court, that the three-member bench which gave the verdict was not authorised to hear the case or pass a judgement after the four judges who were part of the earlier seven-member bench, dismissed the petitions and declared that the Supreme Court was not authorised to assume jurisdiction while high courts in Lahore and Peshawar were hearing the case.
What raised even more questions about the order passed by the three-member bench on Tuesday was the order of another three-member bench — headed by Justice Qazi Faez Isa — which barred judges of the Supreme Court from hearing any suo moto case unless the full court frames the relevant rules.
This judgement had further reinforced what four judges of the Supreme Court had already stated, that the Chief Justice of Pakistan alone cannot decide to take suo moto notice of a case under Article 184(3) of the Constitution, which mentions ‘Supreme Court’ and not ‘Chief Justice of Supreme Court’.
Although a hurriedly convened six-member bench has dismissed the view of the four judges and the verdict of the three-member bench headed by Justice Qazi Faez Isa within a few minutes, the questions are likely to continue hanging fire.
Had the same verdict been given by a full court, as demanded by the federal government, several political parties and legal experts, there would hardly have been any question raised about the decision.
A full court verdict would have left little room for the federal government to defy a complete implementation of the Court order.
Under the current circumstances, however, the federal government has taken refuge behind the order passed by the four judges and announced that the decision of the three-judge bench will neither be accepted nor implemented.
It seems that the decision to not convene the full court has widened fissures within the Supreme Court and it is difficult to comprehend why the chief justice decided not to convene a full court to hear this critical case.
While there may be reasonable questions about the bench which delivered the judgement to roll back the ECP directive, the basic thrust of the order is in the right direction. The order is very clear, emphatic and leaves almost nothing to chance. In some ways, the verdict of the bench needs to be appreciated for its clarity.
The judgement primarily relies on the clear constitutional provision that the election to a pre-maturely dissolved assembly must be held within ninety days of the dissolution. The Constitution provides no exception to this requirement.
The verdict also clarified that the powers given to the ECP under Section 58 of the Elections Act, 2017 to alter the election schedule or issue an altogether new schedule, is also to be exercised within the ninety-day limit set by the Constitution.
The verdict also depended upon the assurance given by the ECP, as recorded in the verdict, that if the commission was provided with necessary aid and assistance by the executive authorities in the federation and the provinces in discharge of their constitutional obligations under Article 220, then it would be able to organise and conduct free and fair general elections to the Punjab and KP assemblies, as required under Article 218(3) of the constitution.
What is, however, astonishing and unprecedented in the verdict is the bench’s decision to not only set a date for polling, but to also give a detailed election schedule for the remaining stages of the Punjab Assembly election.
The sense of the Constitution is to allow the executive to fix the polling date and Section 57 of the Elections Act 2017 leaves it to the ECP to prepare and issue a detailed election schedule after the polling date is set. The three-member bench has apparently gone overboard and unnecessarily assumed the powers of the ECP, which further undermines the commission’s authority.
Unless challenged at a competent forum, this action of the bench will set a rather unhealthy precedent for the future.
Yet another unprecedented and significant aspect of the verdict is that the bench has virtually appointed itself as a supervisory authority over the ECP, which is supposed to be an independent, constitutional body exclusively entrusted with the conduct of elections.
The commission has been directed to file a report to the bench on whether it has received the requisite funds from the Ministry of Finance or not.
As the federal cabinet has decided to publicly reject the verdict and there is talk of filing a reference in the Supreme Judicial Council against the three members of the bench, the million-dollar question is where do we go from here?
Apparently, another round of legal battle cannot be ruled out. As parliament has passed the Supreme Court (Practice and Procedure) Act, 2023 and the government awaits the assent of the president before it becomes a law, the federal government may be able to file an appeal against the verdict after the bill is signed into law.
Since, according to the law, the bench is to be formed by the chief justice and the two senior-most judges, chances are that an enlarged bench or a full court may hear the appeal. In the meantime, the chief justice may also initiate proceedings against the newly passed bill and even declare it unlawful.
At present, a messy and prolonged legal battle, and an even more polarised society is more likely than the holding of elections on May 14.