THERE is a real lack of focus and clarity in our national purpose today. The unique consensus on the constitutional requirement of elections within 90 days has, instead, been digressed to a debate on the suo motu jurisdiction of the Supreme Court under Article 184(3) of the Constitution, on the discretionary powers of the chief justice of Pakistan, on the appointment of benches by him, and whether the SC decision dated March 1, 2023, in Suo Motu Case No. 1 of 2023 (‘Suo motu regarding holding of general elections to the provincial assemblies of Punjab and KP’) should be considered as a 3-2 or a 4-3 decision.
The original nine-member bench in this case was reduced by two recusals in the beginning and by further purported recusals and separate opinions of members of the bench. Each of these debatable areas has been a part of the national dialogue for some time but it is unacceptable that they hold hostage, today, the unequivocal requirement of holding elections in 90 days. There is a frenzy in the nation as seen in the media, seminars and op-eds each highlighting the disharmony based on legal hair-splitting. But while each is counting the trees, few see the forest.
The Constitution in its Article 224(2) provides: “When the National Assembly or a Provincial Assembly is dissolved, a general election to the Assembly shall be held within a period of ninety days after the dissolution, and the results of the election shall be declared not later than fourteen days after the conclusion of the polls.”
The period of 90 days for holding elections of a dissolved assembly, on the dissolution by a governor, is reinforced by Article 105(3): “Where the Governor dissolves the Provincial Assembly … he shall: (a) appoint a date, not later than ninety days from the date of dissolution, for the holding of a general election to the Assembly… .”
It is an accepted given that, in the trichotomy of separations of powers, the Constitution is interpreted by Pakistan’s superior courts. It is the most fundamental principle of interpretation that the words in the Constitution should be given their plain, natural or ordinary meaning. The judiciary has responded to this mandate by affirming, without exception, that the elections are required to be held within 90 days.
The Lahore High Court, through its judgment dated Feb 10, 2023, in ‘Pakistan Tehreek-e-Insaf vs. Governor of Punjab’, was the first with this determination and ordered appropriate actions toward the required elections. This matter went in appeal before a division bench of the LHC when the SC took suo motu action to reaffirm this constitutional obligation. The detailed separate notes of four judges (Justices Yahya Afridi, Athar Minallah, Syed Mansoor Ali Shah and Jamal Khan Mandokhail), however, raised issues about the appropriateness of exercising suo motu jurisdiction, about the discretionary powers of the CJP in the governance of the SC, and about the number of judges that supported the final SC judgement of March 1, 2023.
Each SC judge, without exception, supported, expressly or tacitly, the 90 days’ requirement.
Inaugurating the Conference on the Constitution of Pakistan at 50 at the Shaikh Ahmad Hassan School of Law, Lums, on March 17, 2023, in fact, a few days before the separate detailed opinions of Justices Shah and Mandokhail were released on March 27, 2023, I had raised the issue of a more democratic and rule-based governance of the SC, but it remains mysteriously incomprehensible how the overarching provisions of the 90 days’ election can be linked to the need for judicial reforms.
It is important that none of the judges disputed the obligation to hold elections within 90 days; in fact, each SC judge, without exception, supported, expressly or tacitly, the 90 days’ requirement. Justice Athar Minallah is, in fact, compelling: “It is not disputed that the Lahore High Court has already allowed the petitions and rendered an authoritative judgement and its competence to have it implemented cannot be doubted … The … proceedings before this Court … [is] likely to delay the enforcement of the judgement of the Lahore High Court, leading to an infringement of the Constitution.”
It is also significant that none of the other judges made any adverse remarks about the LHC judgement which clearly directed the ECP “to ensure that the elections are held not later than ninety days as per the mandate of the Constitution”.
Based on a contextual examination of the SC judgement and all the opinions of the judges related to it, it can be concluded that the court has unanimously interpreted Article 224(2) to require elections within 90 days. But the government is openly defying the SC orders on elections on the grounds of the extraneous matters raised in the separate notes of some judges.
Another important aspect is being ignored. It is the duty of all citizens to obey and support all the constitutional provisions. It is nowhere required in the Constitution that its implementation is conditional on the SC’s orders, or for that matter by any order of any court of Pakistan. The Constitution should best be considered as a “self-executing” document and all individuals, governments, agencies and institutions are expected to follow its provisions with automaticity and without recourse to any person or institution including the judiciary.
Of course, the judiciary steps in to interpret, when asked, but to conditionalise the implementation of each provision of the Constitution to an order of a court is to read into the Constitution what is not there.
From this understanding, it follows that the government’s obligation to hold elections within 90 days is intrinsically embedded in the Constitution and the government is inappropriately seeking to avoid this obligation by reference to issues raised in the separate notes of the judges, however weighty, but not affecting or relevant to the requirement of the elections within 90 days. The requirement of elections within 90 days would, undoubtedly, also effectively promote the well-recognised maxim, salus populi est suprema lex (welfare of the people is the supreme law).
The government’s defiance is untenable, mala fide and mischievous. It is an impermissible attempt at self-perpetuation. The ‘qabza group’ is a familiar phrase used in matters dealing with real estate and the ruling alliance may have extended that to itself as becoming the qabza group in Pakistan’s politics.
The writer is a senior advocate of the Supreme Court.
Published in Dawn, April 27th, 2023