SC landmark judgment  | By Rizwan Ghani


SC landmark judgment

SUPREME Court judgement has clearly opened the door for the general election. It is a legal requirement to hold elections of two provincial assemblies in 90 days but in the current situation it will make the general election controversial. Now it is up to the political parties to avail the opportunity or reject it. A careful look at the judgment shows that holding a general election is the best option for having a free and fair election, continuation of democracy and preserving democratic system of check and balance.

Government is not going to appeal for review of the decision. While responding to a question of operational order, the Law Minister based his decision on a footnote of the order which was read by the AG. He opined that with four judges questioning maintainability of suo motu notice. Four out of seven judges are against taking up the case. The case is open in two high courts already. He said the government will wait for their judgments.

In 14a of the order, SC has asked ECP to propose an election date to the President. A date that deviates bare minimum is a legal cover for the 90-day window. The court has asked the federation in para 15 to extend its support for the elections in a timely manner. It is most likely that a general election date will be given as compromise/face saving to end the current political standoff. That’s why it is a landmark judgment of the Supreme Court despite all the criticism.

Here are some of the reasons why provincial elections cannot be held now. Digital census has started. It was approved during PTI government for having population-based representation in parliaments and allocation of funds. Political parties demanding Punjab and KP elections on old census are going to deprive their voters from their democratic rights. It only shows that they want to return to power irrespective of the fallout.

The results of general elections will become controversial if two elections are held separately. Under the law, general elections must be organized by a caretaker government for having free and fair elections. There is no mechanism to replace a freshly elected government with an interim setup for general elections as per given rules. With political governments in power in Punjab and KP, there is no guarantee that other political parties will accept their results in the general election.

The Judgment however needs changes. It is unfortunate that the Apex Court has upheld the order of the President dated 20.02.2023 in para 13 as constitutionally competent because after 18th Amendment these are powers of the Governor under Article 105. It is a rewriting of the Constitution. Hopefully, ECP will file an appeal to restore its independence. Government is not challenging it now because it makes political offices strong at the cost of the Election Commission and Judiciary.

The last-minute withdrawal of the President’s KP letter by his attorney exposes its malafide nature. The two letters were sent to start the case in which KP letter was a decoy. The President’s office has been used for party politics which merits accountability. Political parties are using their legal teams to jam the legal system. America overcame a similar Trump strategy with its resilient state, judiciary, and bureaucracy.  Despite all the criticism, the Supreme Court has managed to survive the latest attack.

Our judiciary is from us. It is not made in any other country. The Chief Justice can do his job with the team he has. Similarly, judges are human beings not prophets and they have their social and family obligations. We should give them their due for who they are and how far they have come in their profession. They deserve our utmost respect and regard. This judgment is a legacy of CJ, despite its shortcomings, because there is a political way out in the order.

But it is also the duty of CJ to put the house in order to keep the politicians out. Ideally the controversial Justices can take voluntary exits. The appropriate platform should list the reforms for input of all stakeholders from the bench and bar and settle all outstanding issues including elevation, bench forming, distribution of cases or plots. The honourable Justices are experienced and qualified to bring the change and end corruption. It is long overdue to change the fate of the public and country.

Political parties should return to Parliament instead of dragging the judiciary into politics. It is time to change the 18th Amendment for dissolution of two assemblies by the party head when CM Punjab was unwilling. There is no democracy in political parties. The funding should be banned to end its use by political parties to stay in power at the cost of vote and democracy.  In the Buckley v Valeo case, American politicians legitimized funding. Modi adopted the model and India paid $108bn in Adani fallout.

The funding creates a cycle which allows politicians to pay for their campaigns.  They fail to deliver by serving their paymaster instead of voters. It forces them to resort to corruption, populism (overpromise), gerrymandering (manipulate electoral constituencies), militarized-police, abuse of judiciary, establishment, bureaucracy and media. If not checked, a corrupt political leadership will end up destroying the economy, democracy and country.