The apex court verdict and emerging political scenario



Ansar M Bhatti

The Supreme Court of Pakistan finally announced an anticipated verdict binding upon the Election Commission of Pakistan to ensure Punjab and KP elections within 90 days. The apex court directed all government machinery to extend all required support to the ECP in order to make sure that the constitutional requirement is fulfilled in the stipulated time frame. The court also directed the respective caretaker governments to do the needful in this regard.

Two, out of five judges however gave their dissenting note. Justice Jamal Mandokhel and Justice Mansoor Ali Shah were of the view that the pleas were not maintainable. When it comes to holding of elections within 90 days after dissolution of the assemblies, these two judges maintained similar views during their observations that elections cannot be delayed beyond 90 days.

The court verdict seeks to put an end to various legal controversies that had gripped the country ever since the dissolution of both the provincial assemblies. The court has determined once and for all that even if the governors do not sign the dissolution summaries, the election will have to be held within 90 days. In that case the President of Pakistan shall announce the date. Though doubts continue to rule supreme at least within those circles that still do not want elections to take place on time for a variety of reasons, yet, majority of the legal as well constitutional experts earnestly believe that after the verdict there is no escape from elections now.

In my piece on this subject titled ‘General elections or a technocratic setup’ published in this newspaper on February 20, 2023 I had opined,’

‘These are the legal glitches that are likely to land in courts and it is presumed the apex court of Pakistan may ultimately make any decision about this. As regards the role of the President, even if it is not written in the Constitution, being the head of the state the President may intervene and he should intervene if he is convinced that the constitutional order is at stake. It is a point of concern that the constitutional bodies are reluctant to fulfill their constitutional role with regard to holding of two provincial elections within 90 days. Everybody is unanimous on this point that there is no such provision that allows elections to be delayed beyond 90 days. ”

Now in its verdict the apex court has clearly mentioned that the Election Commission would consult the President before announcing the date for the elections. The good news is that the Election Commission has already started the process.

Interestingly, the government legal team came up with a rather strange justification. The Attorney General and the Law Minister while talking to media observed that since two judges ( Justice Athar Minallha and Justice Yahya Afridi) had already given their opinion against the maintainability of the applications and two judges ( Justice Mansoor Shah and Justice Mandokhel) who were part of the five-member bench have given a dissenting note therefore according to the government view this verdict is not 3-2 as announced by the chief justice of Pakistan but 3-4 ( four judges dissenting). This plea on the part of the government seems quite immature and irrational because the legal fraternity is unanimous that the final judgment is the one which is announced by the Chief Justice of Pakistan which declared holding of the elections in 90 days by majority of 3-2. Even in the coming days the government may come up with similar interpretations with a view to creating confusion nevertheless no gimmick is going to work as the Supreme Court verdict is candid clear and it cannot be defied or shelved, at least, through democratic means.

The government circles believe some ways can still be found to get the elections delayed. It shall however be a futile exercise. The court verdict ostensibly should not augur well for the PDM parties as none of them is ready to go for elections. These parties were quite sure they would be able to get the elections delayed as according to their assessment the powers-that-be were on their side. As per the PDM plan, after seeking a delay in the provincial elections, their next target was to get the national elections delayed. There is a provision in the Constitution that in case of any emergency situation the national elections may be delayed for one year. The existing economic condition of the country would have provided the PDM with an ample excuse of achieving this end. But to their disappointment, the Supreme Court verdict appears to have dashed all their hopes to the ground.

In the given circumstances the government is left with the only option to file a review against this verdict. There are nevertheless divergent views on this within the government ranks. The majority is of the view that even in case of a review the verdict is not going to change as the same five-member bench shall hear the review petition. The review petitions normally have a very limited scope and any chances of success therefore the exercise if undertaken would only add to the woes of the government.

Summing up, the PDM government, even after the court verdict, is not obliged to call the national elections. It may continue till its tenure comes to end somewhere in August this year. There is hardly any doubt that the PTI shall sweep provincial elections if held in a free and fair manner. If so happens then the party shall be in a better position to perform well even in the national elections. Choices for the PDM parties are not too many. The incumbency factor would take a heavy toll on them. It would be much better for them to announce national elections allowing the provincial and the national electoral drill to take place more or less at the same time.

The writer is the Editor Daily Islamabad POST and Centreline Journal