THE Supreme Court on Wednesday gave directions for holding elections in the provinces of Punjab and Khyber Pakhtunkhwa (KP) within 90 days and directed all the executive authorities in the Federation and the provinces to assist the Election Commission of Pakistan (ECP) in the discharge of its functions. In a split verdict given after just two days of hearing of the all-important case pertaining to the announcement of election dates for Punjab and KP Assemblies, the five-member Bench of the Apex Court declared the order of the President dated 20.02.2023 with regard to the Punjab Assembly as constitutionally competent but termed the order pertaining to the KP Assembly constitutionally invalid thereby setting it aside.
As the top court took suo motu notice of the issue in the backdrop of an unending controversy as to who has the authority to announce a date and whether or not polls were possible within the constitutionally stipulated period of 90 days of the dissolution of the respective assembly, it was widely expected that the verdict would put a seal on the uncertainty on this crucial matter. However, the expectation could not materialize and the issue has become even murkier because of the questions raised about the very constitution/composition of the bench, objections raised by fellow judges about the power of the court to take suo motu notice on the matter which should have been discussed in Parliament and the language used by the court in its verdict which is being interpreted differently by the opposing sides and understandably so.
It is rightly termed by some as a homeopathic prescription for a malaise that needed either surgery or a strong dose and that is why neither the PTI nor the PDM can justifiably construe it as their victory or loss. As for the court directions about holding the elections in the two provinces within 90 days were concerned, it just repeated what is already and clearly mentioned in the Constitution itself. Similarly, it is also a constitutional and legal obligation of the provincial and federal governments as well as other executive authorities to assist the Election Commission in the discharge of its responsibilities vis-à-vis holding of elections. However, the reasons cited by these executive authorities for their inability to do so in the prevailing circumstances are not only there but have compounded further.
The Finance Ministry maintains and rightly so that it cannot spare enormous amounts for holding separate elections for the two provinces and then for general elections for NA and the rest of the provincial assemblies. The financial and economic conditions of the country are so precarious that they frequently cause rumours about stoppage of salaries and pensions and the delay in the finalization of the IMF programme was pushing the country to a stage where the Government might have to announce a financial emergency. There are also question marks whether or not Pakistan Army, Rangers, Police and Judiciary can spare the manpower needed for the smooth and peaceful conduct of the exercise as country-wide Population Census has already started and an operation was underway against the threat posed by terrorist outfits especially the TTP, which, according to the US intelligence sources, was working on a plan to get a foothold in the KP to enforce its own version of Islam. A decisive action against the threat is becoming an urgency that would require huge resources both in terms of finance and manpower.
It is also because of the ambiguity of the proceedings and the outcome that the Government side maintains the suo motu case regarding delay in holding elections in Punjab and KP has been rejected by a majority of 4-3 and this interpretation could force the other side to go for a review of the decision or knock the doors of the court on the plea of contempt. This would also be a time-consuming exercise if conducted in a transparent and fair manner.
There is also a viewpoint that the court ruling has offered a way-out to the Government as the court itself has acknowledged that the deadline of 90 days was not enforceable and allowed a deviation for a ‘barest minimum’ period. Therefore, the Government now has legal/court cover to delay the polls on grounds that are being cited frequently for the purpose. The ruling has also triggered another controversy about power and authority of the President to announce a date for holding elections in a province. The Constitution clearly vests this authority to the President in case of dissolution of the National Assembly and Governors in case of dissolution of provincial assemblies but the court, according to a segment of the legal fraternity, has once again re-written the Constitution by giving its opinion that the President was well within his right to give a date for elections in Punjab, where the Governor was not ready to do so as he was not part of the process to dissolve the provincial assembly. This interpretation could create new controversies in future as well because of the fast changing political landscape of the country.
Under these circumstances, the verdict of the Apex Court has served only one purpose – an honourable exit to the PTI which landed itself into another trouble by announcing a ‘Jail Bharo’ Movement which evoked poor response from party workers and supporters. The verdict offers an opportunity to Imran Khan to call off the movement on the plea that the party will now focus on election campaigns in the two provinces. The controversy that the country witnessed during hearing of the suo motu case has highlighted the fact that there was growing resentment over judicial activism and constitution of the benches for hearing important cases. As the issue has a bearing on the credibility of the judicial system and institutions, it would be advisable if other institutions are encouraged to resolve their issues on their own instead of putting the judiciary on trial by bringing cases of political nature for its consideration and decision. Courts have already suspended notifications regarding acceptance of resignations of the PTI Members of the National Assembly and it would be in the national interests if the party returns to Parliament and plays a positive role there. The issue of when elections are to be held should be better left to the wisdom of Parliament. There is also a proposition that elections for both the National and Provincial Assemblies should be held simultaneously because of legal and political complications in case polls in the two provinces are held ahead of the general election as this would provide leverage to the ruling parties of the two provinces to manipulate the general election to their favour.
