Elections, or else

Published April 5, 2023

THE nation would have greatly benefited had the judiciary presented a united front in these divisive times. Instead, the chief justice went with a smaller, three-member bench of the Supreme Court to rule that the ECP’s March 22 order postponing the Punjab Assembly elections to Oct 8 was “unconstitutional, without lawful authority or jurisdiction, void ab-initio, [and] of no legal effect”.

The court has now brought forward the election date to May 14, issued a revised schedule and set hard deadlines for the release of funds and finalisation of security plans. It has also opened the door for appeals against the similar postponement of the KP polls.

While there is nothing in the court’s ruling that can be considered ‘sensational’ per se — the Constitution was always rather clear about the 90-day deadline — the chief justice’s decision to issue the elections delay case verdict through a diminished bench may worsen both the divisions within his institution, as well as the ongoing stand-off with the incumbent government.

The government and the ECP had adopted very similar lines of argument to repeatedly press the chief justice to convene a full court to hear the elections delay case. They had objected to the chief justice taking suo motu notice of the original delay caused by the Punjab and KP governors’ unwillingness to issue election dates and argued that it would be better for the full court to speak as one voice on the matter.

Their demand became especially pertinent after multiple Supreme Court justices made observations or issued opinions challenging the chief justice’s “one-man show” in appointing benches and taking suo motu notice.

Forming a full court may have nipped in the bud most of the controversies that are now expected to follow. Tuesday’s developments also indicate that the differences between the top judges may have hardened and may be far from being resolved.

Be that as it may, it ought to be pointed out that none of the Supreme Court judges, at any point, ever questioned the Constitution’s 90-day deadline. Their objections were related mainly to the chief justice’s sole discretion over suo motu powers and the way the benches have been formed.

The verdict issued by the three-member bench is, therefore, what any verdict issued by a larger or full court bench would have been if it was asked whether or not the Constitution allows the ECP to delay elections on its own. There is, therefore, little logic in resisting or, worse, ‘rejecting’ the verdict.

The chief justice, meanwhile, still has a chance to salvage the situation. He should not continue to ignore the concerns being raised from within his court and without. It is important that the full court be convened post haste to settle all remaining questions.

Published in Dawn, April 5th, 2023

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