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An ill-explained order

Updated July 28, 2013

THE boycott of the upcoming presidential election by several of the opposition political parties in the wake of the shifting of the presidential election forward by a week to July 30 has put the spotlight squarely on the Supreme Court’s intervention in the matter.

The court decided the matter through a five-page order, in a single hearing, giving the impression of it being a straightforward matter. Yet, the court has not acknowledged serious constitutional and legal hurdles.

Could the Supreme Court have simply second-guessed the election schedule prepared by the Election Commission of Pakistan because it felt it would be more convenient?

The Supreme Court is a powerful court, but even its power is regulated by the Constitution. The only direct way for a petitioner to approach the Supreme Court is under Article 184(3) of the Constitution.

This requires that there must be a matter of ‘public importance’ and it must relate to the ‘enforcement’ of ‘fundamental rights’ protected by the Constitution. The Supreme Court’s order makes no attempt to discuss whether this threshold has been fulfilled.

Does the shifting of the election from Aug 6 to July 30 ‘enforce’ the fundamental rights of the people of Pakistan? What is worrisome is that the Supreme Court did not attempt to articulate a position vis-à-vis this constitutional provision to justify whether it can pass such an order.

With respect, the Supreme Court needed to justify how holding the election on Aug 6 would breach fundamental rights and how holding it on July 30 enforces those rights. Merely finding the election schedule unreasonable or impractical does not give rise to the justification or jurisdiction for the Supreme Court to exercise its power.

Moreover, what is the justification and is it constitutionally sufficient? The Supreme Court has effectively held that sitting in aitekaf, or proceeding on umrah by some voters in an election are sufficient grounds for changing the election date.

Is the absence of voters ground for changing election dates? How many voters must be absent for this ground to be available to a political party? On what grounds must they be absent?

Inability to get voters to the election booth (because ultimately that is what the PML-N’s ground boils down to) should not be a constitutional reason for the political party to get changes in an election date. Would this apply in a general election, and if not why not?

Could a political party state that elections at one time are inconvenient because its voters would not be able to make it, so the election date should be changed?

No figures were provided in the Supreme Court as to how many members would be abroad (none at least are mentioned in the order). Crucially, none of the members who would actually not be able to vote approached the court asking for a change in the date.

Senator Zafar-ul-Haq did not state that since he would not be able to vote, his rights were being violated. He simply said that there may be some other people who may not be able to vote, so on that hypothetical premise (not backed by statistics) the election date should be changed.

Yet, none of those ‘other’ people had actually approached the court asking for redress. Should an election date be changed on the basis of hypothetical unavailability of people, when none of the people suspected to be unavailable have actually made an issue out of it?

The only justification provided in the order is that the Constitution provides that Muslims will be allowed to order their lives in accordance with Islamic principles. That voting may involve a sacrifice of the voter’s spiritual ‘plans’. Thus an election on Aug 6 would be unconstitutional. Having an election in the last 10 days of Ramazan does not prevent a Muslim from “ordering his life” in accordance with Islamic principles. He or she can still pray, fast, worship and carry on living freely as a Muslim.

Inconveniencing an optional religious ‘plan’ once in five years for a constitutional election does not prevent their life from being “ordered” according to Islam. This is not a violation of the Constitution.

After all, the citizens of Pakistan do not stop working in the last 10 days of Ramazan and it is not unconstitutional to work in those 10 days. Why should parliamentarians not report to their work? How is that unconstitutional?

However, circle back and the question remains, where is the “enforcement of fundamental rights” that is the only situation in which the Supreme Court can directly intervene? Where is even the pretence of a discussion of that question?

Then there is the procedural question mark. One political party has been heard and the entire matter has been decided on its stance alone. No opportunity was granted to any other candidate or any other party to present its stance.

Courts usually hear interested parties before deciding a question that will impact them. Changing the date of an election may have a significant impact on the outcome of that election.

The availability (or lack thereof) of the voters for a candidate on any given date is crucial to an electoral contest. Therefore, it was imperative that at least the other candidates (if not parties) should have been heard.

The Supreme Court’s order is too simple. Constitutional hurdles involved have simply not been explained. The numbers in this presidential election already pointed to a heavy favourite.

However, by bringing the date forward at the behest of one party to ensure that the maximum number of their voters would be present, the Supreme Court (knowingly or unknowingly) made a game-changing intervention — but left its wisdom and jurisdiction unexplained.

The writer is a lawyer.