Beginning of another crisis? Legal eagles weigh in on SC’s Punjab poll verdict

Most legal experts are of the view that while the verdict is in line with the Constitution, it is likely to set off another crisis.
Published April 4, 2023

In a verdict hailed by Imran Khan’s PTI and criticised by the PML-N-led ruling coalition, the Supreme Court (SC) on Tuesday declared the Election Commission of Pakistan’s (ECP) decision to postpone polls to the Punjab Assembly till Oct 8 “unconstitutional” and fixed May 14 as the date for elections in the province.

The verdict came after a weeks-long tussle between the PTI and the government over the matter and several judicial recusals. The decision also followed a deepening rift between the judiciary and the government, which has expressed a lack of trust in the chief justice of Pakistan-led three-member bench that announced the verdict.

So where do we go from here? Most legal experts are of the view that while today’s verdict was in line with the Constitution, it will likely set off another crisis. Here’s what they had to say.

Abdul Moiz Jaferii

Lawyer Abdul Moiz Jaferii told Dawn.com that by declaring the ECP decision to delay polls till October illegal, the SC has “solved only the lesser of the crises it was involved in”.

He said that the “greater crisis is of the court’s own making, and the CJP’s failure to build consensus amongst his colleagues leaves it unresolved.

“It is this failure to form a full court and exhibit a united front that has allowed for the government to issue the threats it has subtly conveyed over the weekend. These threats will only get louder now that the expected decision has been announced.”

He added on Twitter, “Constitutional crisis here we come, right back where we started from.”

Mirza Moiz Baig

When Dawn News asked lawyer Mirza Moiz Baig for his opinion on the matter, he said he believed that the top court’s enunciation in the verdict of the constitutional principle that elections were to be held within 90 days after the dissolution of an assembly was “uncontroversial and there was, perhaps, never any doubt in this respect”.

But, he continued, “I believe this judgement, perhaps, raises a number of questions about the contours of the SC’s original jurisdiction”. He added that the exclusion of those judges from the adjudication of this case whose view point was different than the chief justice also raised several questions.

Moreover, he said, “the manner in which the court has heard and then decided this case perhaps raises a number of questions not only about the integrity of the electoral process but also about the integrity of the court itself.”

He said that if the government opted to flout the apex court’s orders, not only would it be unlawful, it would also “escalate and aggravate the tensions between the executive and the judciary […] and we are going to be in a situation where there is going to be more political uncertainty and where there is going to be an extreme conflict between the executive and the judiciary”.

Nevertheless, Baig foresaw the government mounting “political and legal pressure” on the SC in the coming days and an “escalation in the government’s narrative about the SC”.

Basil Nabi Malik

Lawyer Basil Nabi Malik shared similar views, albeit more succinctly.

Doing the right thing the wrong way did not resolve issues, it only created new ones, he said, adding, “And that is precisely what this decision has done.”

Salaar Khan

Lawyer Salaar Khan also commented on the “importance of the procedure”, but stressed that the SC’s decision was the “correct ultimate outcome”.

“One can legitimately debate the procedure. But whether this was a full court of the SC or a high court, this would still have been the correct ultimate outcome. To condone the alternative is to allow the clear text of the Constitution to yield to the 2023 remix of Necessity,” he said on Twitter.

He added: “That said, the importance of procedure cannot be understated - and for the same reason. The ends justifying the means is exactly that: Necessity by another name. One can recognise this while remaining faithful to the text of the Constitution. Any contradiction is only imagined.”

Asad Rahim

On the other hand, Barrister Asad Rahim said that despite extraordinary pressure, the SC had done its duty to the law and Constitution, and singlehandedly kept democracy alive.

“It is a good day for the rule of law, and for Pakistan as a federation,” he told Dawn.com, adding that it now fell on the state — and the people — to make sure the judgment was enforced.

Muhammad Ahmad Pansota

Lawyer Muhammad Ahmad Pansota also hailed the decision as “historic” and said Chief Justice of Pakistan Umar Ata Bandial “has chosen to live as one of the greatest chief justices of this country”.

Speaking to Wion news channel, He said he believed it was the first time in this country that the doctrine of necessity had been buried.

He added that the only possible “problematic situation” that could arise would be a “backlash” from the government’s side that would have to be tackled. “But there will be an in-built mechanism in the judgement and the SC will take care of its implementation as well,” he added.

He said the Constitution was clear that the top court’s order was binding on all and so, “the SC will be calling the shots”.

Rida Hosain

Barrister Rida Hosain said that against all the odds, the Constitution had prevailed in Pakistan today.

“A simple but crucial constitutional command has been unequivocally enforced. The order of the ECP altering the date of the elections to 8 October has been declared unconstitutional and without lawful authority by the Supreme Court.

“The government raised arguments about lack of funds and the security situation in the country to justify the delay in the elections. These arguments were rejected by the Court and along with it the doctrine of necessity remains in the history books where it belongs,” she told Dawn.com.

Hosain said that in a country that had seen persistent interference in the democratic process, it was about time that the process was allowed to continue and flourish.

Usama Khawar

Lawyer Usama Khawar was of the opinion that the apex court’s decision would not end the present politico-legal crises and would instead exacerbate it.

“It is likely to bring the executive — political and bureaucratic — firmly against the judiciary, especially the chief justice-led faction of the SC, and the Parliament,” he said.

He highlighted that the judiciary, which neither controlled the purse nor the sword, could not win this round by “picking up a fight with the other two pillars of the state, the executive and Parliament”.

He further said that the decision was likely to further erode the top court’s “credibility and authority”.

“The only real tool that the SC has at its disposal is its moral credibility. In the present crisis, the SC has been widely perceived to be a partisan institution,” he noted, adding that its credibility had been further dented by “revolt” from within.

“The decision would have carried much more weight if the SC was perceived to have been procedurally just and had adhered to the recognised principles of due process of law, including formation of benches,” he said.