Constitutional amendments: Part IV – 13 Feb 2023

After General Ziaul Haq managed to arm twist the National Assembly in 1985 to pass the devastating 8th Amendment, he announced the withdrawal of martial law in December. Now the country was apparently under a civilian rule, alarmed by the spectre of the 8th Amendment.

Prime minister Muhammad Khan Junejo became the president of the Pakistan Muslim League. This signalled the revival of party politics in the assemblies, which officially had no parties since the party-less elections a year earlier. But it did not imply that General Zia’s influence was not there. After nearly nine years of absolute rule, his anti-democratic notions echoed everywhere in the country. Cumbersome requirements for political parties to get registered were in place and Gen Zia kept exhorting the assembly to pass more Islamic laws; he remained all-powerful as the army chief and president of Pakistan.

When Benazir Bhutto returned to Pakistan and an extremely large procession received her in Lahore in April 1986, it raised alarm bells in the government ranks and Gen Zia once again talked about the need for more Islamic laws in the country. With this background, the work on the 9th Amendment started. The bill would have imposed Shariah as the supreme law of the land by amending Articles 2, 203B and 203D of the constitution. Less than three months after Benazir’s arrival in the country, the Senate passed the Ninth Amendment Bill in July 1986 and sent it to the National Assembly.

General Zia and his machinery had a two-pronged strategy to counter the popularity of Benazir and prevent her from demanding fresh elections. In urban areas of Sindh, the MQM suddenly emerged as a potent force and Karachi and Hyderabad witnessed some of the worst ethnic riots in the history of Sindh. Second was the use of religion to persuade Pakistanis that a woman could not be the leader of an Islamic country. The Ninth Amendment Bill got stuck with the select committee of the National Assembly and it could not progress to change the constitution.

The National Assembly passed the 10th Amendment in March 1987 to reduce the duration of the interval between sessions of the National Assembly and the Senate from 160 days to 130 days. In the third year of his premiership, MK Junejo became increasingly assertive, much to the chagrin of General Zia who still wanted to call the shots. In April 1988, two significant events took place: on April 10, Rawalpindi witnessed one explosion after another as the Ojhri camp that stored ammunitions blew up with mysterious blasts; and on April 14, the Junejo government signed the Geneva Accord to pave the way for the withdrawal of the Soviet forces from Afghanistan.

By the end of May, it became clear that General Zia was not happy with the prime minister for his assurance to the nation that the Ojhri camp investigation report would be made public. General Zia was also not happy with the final agreement that the Junejo government had signed in Geneva without getting his approval on the final draft that did not include a provision to hand over power to the Mujahideen. At the same time, horrific killings in Karachi were going on unabated with unprecedented ethnic tensions across Sindh.

Now the 8th Amendment came in handy for the general who used it to dismiss MK Junejo unceremoniously on charges of corruption and inability to expedite the process of introducing more Islamic laws in the country. That was the first strike of the deadly 8th Amendment, and there were many more to come in the 1990s. Gen Zia announced that the country would go through another general elections. But before this, in August 1988, his plane exploded in mid-air, killing him and his colleagues. Senate chairman Ghulam Ishaq Khan assumed the office of president in accordance with the constitution.

Though Gen Zia had earlier announced non-party elections, the Supreme Court led by chief justice M Haleem – the longest serving chief justice so far – ordered party-based elections after hearing a petition by Benazir. After the death of Gen Zia, Haji Saifullah challenged the dissolution of the National Assembly under the 8th Amendment introduced by Gen Zia. The Supreme Court declared that the dissolution was unconstitutional but did not restore the assembly and allowed the planned elections to go ahead. In 1993, General Aslam Beg claimed that as the country’s army chief he had advised the Supreme Court not to restore the assemblies in October 1988.

By the end of 1988, 35-year-old Benazir became the youngest prime minister in the country’s history and the first woman leader in the Muslim world. Opposition members in the Senate presented the 11th Amendment in 1989 to restore reserved seats for women in the National Assembly to 20. The PPP government could have approved it but perhaps it did not want the then opposition to get credit.

Prime minister Benazir Bhutto assured that the PPP government would introduce the same bill on its own. So the bill was withdrawn, and like the ninth amendment, the 11th amendment also could not amend the constitution. By 1990, president Ghulam Ishaq Khan was ready to use the 8th Amendment once again to send the assemblies packing. Benazir wanted to exercise her authority with full powers but the president was not inclined to allow the government to work independently. When Benazir tried to assert her control as the head of government while making some crucial decisions, GI Khan struck with a vengeance. And on August 6, 1990 the 8th Amendment devoured its second victim since 1985, toppling Benazir’s government.

In her 20 months as prime minister, Benazir was unable or unwilling to introduce any new constitutional amendments. Ahmad Tariq Rahim challenged the dissolution of the assembly by the president but the Supreme Court upheld it. The newly installed Nawaz Sharif government introduced the 12th Amendment in July 1991 to establish speedy courts for the trial of dreadful offences for three years. The amendment also raised the salaries of the judges of the Supreme Court and the high courts. Apparently, prime minister Nawaz Sharif was pretty happy with the judges for not restoring Benazir’s government following the use of the 8th Amendment by president G I Khan.

By 1993, the third victim of the 8th Amendment was in order. The president was not happy with prime minister Nawaz making his decisions and not considering the president as an all-powerful head of state – capable of using the eight amendment once again to send a third prime minister home. As Nawaz asserted his authority and declared that he would not take any dictations, he sealed his fate. In April, the president used the 8th Amendment to strike again at the root of democracy in this country.

During its two-and-a-half years of rule, the Nawaz Sharif government passed the 12th Amendment. After Nawaz Sharif’s removal from office when chief justice Naseem Hasan Shah heard the petition, he went against the use of the 8th Amendment by the president. It is worth recalling that Justice Shah was one of the judges who had confirmed ZA Bhutto’s death sentence nearly 15 years earlier. Nawaz Sharif assumed office again in May 1993 but had to resign when army chief Gen Abdul Waheed Kakar forced both the president and the prime minister to resign in July 1993.

To be continued…

The writer holds a PhD from the University of Birmingham, UK. He tweets @NaazirMahmood and can be reached at:

mnazir1964@yahoo.co.uk

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Right to the city – 13 Feb 2023

EVERY day in Pakistan brings stories of violence against women. But some are particularly harrowing in their symbolism.

The rape of a woman in Islamabad`s F-9 park has been the most recent incident to have sent shivers down the spine of every woman who lives in the city. Not only is it a brutal reminder of the precariousness of their safety, it also tells them once again that the city they inhabit is not theirs.

The F-9 park, which until some years ago was called the Capital Park and more recentlyFatimaJinnahPark,isIslamabad`s most recognisable public space, central to social and cultural life. An expanse of green space in the middle of an ever-growing metropolis, it is where the city`s residents connect with nature, stretch on the grass, spread picnic blankets under trees and sun themselves on winter afternoons.

In a deeply classist and unequal city, the park is also a rare democratising space.

Islamabad has only a handful of venues for cultural and literary activities, access to which is governed by class rules. And so, for years, the park has been a venue for study circles, poetry readings, art classes and photo walks. With the city`s prominent feminist groups choosing the park as the venue for last year`s Aurat Azadi Jalsa, the park had also become a space for protest and politics.

A violent sexual assault on the grounds of this park is a chilling reminder to the women of Islamabad that they are not safe in public spaces. The victim-blaming statements in the wake of the incident and calls on social media to ban women from entering parks at night further denies them the right to the city and its public spaces.

Pakistan`s capital has long treated its women and marginalised citizens with utter callousness. Poor and worlcing class residents were excluded from its very design, and policies introduced in subsequent years only served to strengthen its exclusionary and elitist character. Its wide avenues and lacl< of affordable and safe public transport are near impossible to navigate without a car. Prohibitive real estate prices have pushed even the middle classes to poorly connected suburbs, forcing the mass of workers to commute for hours on perpetually dug-up roads. Frequent anti-encroachment drives target small-scale vendors operating from carts and stalls and run bulldozers over the homes of the poor. For its women residents, Islamabad becomes more unsafe and unwelcoming each day. Students and working women struggle to find safe and affordable accommodation, with the authorities often serving notices to private hostels established inEVERY day in Pakistan brings stories of violence against women. But some are particularly harrowing in their symbolism. The rape of a woman in Islamabad`s F-9 park has been the most recent incident to have sent shivers down the spine of every woman who lives in the city. Not only is it a brutal reminder of the precariousness of their safety, it also tells them once again that the city they inhabit is not theirs. The F-9 park, which until some years ago was called the Capital Park and more recentlyFatimaJinnahPark,isIslamabad`s most recognisable public space, central to social and cultural life. An expanse of green space in the middle of an ever-growing metropolis, it is where the city`s residents connect with nature, stretch on the grass, spread picnic blankets under trees and sun themselves on winter afternoons. In a deeply classist and unequal city, the park is also a rare democratising space. Islamabad has only a handful of venues for cultural and literary activities, access to which is governed by class rules. And so, for years, the park has been a venue for study circles, poetry readings, art classes and photo walks. With the city`s prominent feminist groups choosing the park as the venue for last year`s Aurat Azadi Jalsa, the park had also become a space for protest and politics. A violent sexual assault on the grounds of this park is a chilling reminder to the women of Islamabad that they are not safe in public spaces. The victim-blaming statements in the wake of the incident and calls on social media to ban women from entering parks at night further denies them the right to the city and its public spaces. Pal(istan`s capital has long treated its women and marginalised citizens with utter callousness. Poor and worlcing class residents were excluded from its very design, and policies introduced in subsequent years only served to strengthen its exclusionary and elitist character. Its wide avenues and lacl< of affordable and safe public transport are near impossible to navigate without a car. Prohibitive real estate prices have pushed even the middle classes to poorly connected suburbs, forcing the mass of workers to commute for hours on perpetually dug-up roads. Frequent anti-encroachment drives target small-scale vendors operating from carts and stalls and run bulldozers over the homes of the poor. For its women residents, Islamabad becomes more unsafe and unwelcoming each day. Students and working women struggle to find safe and affordable accommodation, with the authorities often serving notices to private hostels established inresidential areas. The commute from places of work and study is increasingly expensive and difficult. In public spaces, women navigate sexual harassment and fear of violence. Even in the city`s heavily policed red zone, which was recently expanded to include sectors F-6 and F-7, women are routinely stalked, followed, honked at and propositioned. In 2020, the Aurat Azadi March was violently attacked by extremist religious groups whose fortified multistorey centres, illegally constructed in green areas, are mushrooming across the city. For many women, participating in the march is an important, symbolic claiming of public space, the only time in the year when, drawing strength from numbers, they can walk their city`s streets freely and fearlessly. The attack told Islamabad`s women that they could not be allowed to claim public space even on this one day. The rape in F-9 park drums in this same message. But hostile public spaces mean women`sexclusion from social, cultural, political and economic life in a city. To deny women safety in green spaces is to deny them nature, air and sunlight, and physical and mental well-being. Inresponse to the assault in F-9 park, city authorities must prioritise women`s safety in public spaces. If safety cannot be ensured,solutions suchas dedicated green spaces for women should be considered. While women-only spaces are not ideal and further gender segregation in society, they can offer short-term respite. Instead of banning women from its grounds, this park named after the mother of the nation shouldbereturnedtoits daughters,sothey too can stretch their bodies on the grass and sit under the shadow of trees, without the fear of prying eyes and violence. Just as they had done in the wake of the attack in 2020, in protesting the rape in F-9 park, Islamabad`s women once again raised the slogan `pe shehr humara hai, mardon ki jagir nahi` (this city is ours, it`s not the fiefdom of men). Pakistan`s capital belongs to all its residents and must change to become inclusive and safe for women and workingclass people, not just rich, powerful, gun-wielding men. • The writer is a gender and climate campaigner. Twitter: @Shiza__Malik Read more

Rangers` violence – 13 Feb 2023

VIDEO of a motorcyclist being beaten on a busy road in broad daylight by Rangers personnel has gone viral on social media, invoking condemnation and anger. The footage shows a Rangers van speeding down a busy road, and knocking over a motorcyclist before several uniformed men kick him and beat him with sticks. It is unclear why the personnel are beating the motorcyclist, but many have stated that this brutality is in keeping with our law enforcers` typically arrogant public behaviour. Others, however, have suggested that the man may have been a suspected robber and that the Rangers apprehended him on the street as he tried to escape. Even if the latter is true, public beating often by those who are supposed to uphold the law is uncalled for and counterproductive. It shows how highhanded officials can be; not only do they have little concern for the onlookers, they also forget that no justice system sanctions this sort of violent behaviour. Many on social media drew parallels between this latest episode and the controversial case from a decade ago when a man was shot and killed by Rangers in a public park. That case sparked outrage, but eventually those convicted were pardoned by the president after reports that the family of the victim had reached an out-of-court compromise.

These episodes show once again that the country needs law-enforcement officials to behave with the dignity and professionalism their duty demands. Beating unarmed people in the streets, even if they are believed to be criminals, simply points to a broken justice system where rage and vengeance dictate actions. There must be an official explanation of the events in the video, and the higher-ups must ensure that such public displays of violence are discouraged. They create an unnecessary spectacle for an already brutalised society, where frustrated citizens are only too ready to emulate violent behaviour and take the law into their own hands.

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Another lynching – 13 Feb 2023

HERE is no question about it: we are living in a hell of our own making. The kind of mediaevalism that was witnessed in Nankana Sahib on Saturday, when a mob of hundreds of enraged men, lynched a blasphemy suspect and attempted to set his body on fire, is not new. Neither is the fact that the suspect was snatched from police custody. Almost exactly a year ago, on Feb 12, 2022, a mentally unstable man was stoned to death in Khanewal district for the alleged desecration of the Holy Quran, after a crowd wrested him away from the law enforcers. And that incident had come within weeks of the gruesome lynching in Sialkot of a Sri Lanl(an factory manager at the hands of a frenzied mob that had accused the foreigner of blasphemy. There seems to be no end in sight to this list of victims, both Muslim and non-Muslim, killed on the mere suspicion of committing blasphemy. Sadly, the fanatical mindset responsible for the deed is not the preserve of the unlettered; it is seen everywhere, including in our halls of learning as the case Mashal Khan, who was killed by fellow students on campus in April 2017, proves.

The latest incident has elicited condemnation from politicians and representatives of the clergy, with Prime Minister Shehbaz Sharif asking why the police were unable to prevent the incident. Two police officials have been suspended and a probe has been ordered. But what good is that? Are such actions going to forestall similarly grisly occurrences in the future? Unfortunately, as we have said previously, there are no quick fixes. Over the decades, it is the state that allowed extremism to grow at home, often weaponising religion for its own ends.

The remedy too lies primarily with the state but it is not an easy one. Deep-rooted reform is needed that goes well beyond simply reassessing the blasphemy laws; it starts with revamping education in schools to promote inclusive thinking and with cracl(ing down on groups and individuals that spew hate against those who hold different beliefs. In this endeavour, perhaps the government can enlist the help of organisations such as the HRCP which has lately published an informative document on the status of religious minorities. Even in these times of economic distress, the government must not relegate the issue to the back-burner.

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School headmistress wounded in gun attack – 12 Feb 2023

Two attackers killed in indiscriminate firing

OKARA:
Two people were killed and a school headmistress was severely wounded in a shooting on Saturday. The incident was driven by an enmity over a love marriage and the injured woman was the groom’s mother.

According to details, a shooting occurred in the suburbs of Shergarh, where a woman was attacked by her son’s in-laws. The woman, a headmistress, was shot outside the school she worked at, while indiscriminate firing claimed lives of two members of the mob involved in the attack.

The initial report by SHO Shergarh Police Station Ejaz Dogar stated that around 20 people opened fire in Shergarh.

The headmistress, Rukhsana Baqir’s, son Bahawal Shehzad married a girl named Ammara some time ago, after which there tension arose between the two families.

The two families faced each other at a court on Saturday regarding a case of the kidnapping of Shahzad’s father. After the hearing, the girl’s reached Shergarh, and shot Rukhsana Baqir outside the school. Two suspected members of the armed mob, Zafar Chatta and Arif Bashir, were killed by indiscriminate firing.

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Agri dept staffer allegedly raped – 12 Feb 2023

Five complaints of sexual assault filed, two attempts thwarted

DIJKOT:
Five women and a man were allegedly raped, including a dancer and an employee of the Department of Agriculture, in separate incidents, while two girls foiled attempted rapes by making noise.

Police said that an FIR was lodged by the agriculture department staffer, a resident of Chak 295RB, at the Jhang Bazaar police station, stating that she knew the suspect, Abdullah, and had told him that she was getting a promotion in the department.

He told her that his friend, an official in the department, would help fast track her promotion.

According to the complainant, Abdullah took her to Lakar Mandi Chowk on Saturday to meet his contact. He led her to a residence where two unidentified suspects were present, under the pretense of introducing the victim to his acquaintance. They reportedly locked the room, threatened to murder the victim and raped her. The two unidentified accomplices stood guard.

Meanwhile, a dancer from Madanpura filed a case in the D Type Colony police station, accusing Muhammad Nauman, a resident of 209RB, of sexually assaulting her. Nauman reportedly visited her home on Saturday and when he saw she was home alone, forced her into a room at gunpoint and raped her. When the victim made noise, her mother-in-law and sister-in-law reached the spot, but the suspect fled.

A 14-year-old girl of Chak 596GB was allegedly raped by Ahmed and Mustafa in TNT Colony, while Ali, Abu Sufyan, and Allah Ditta attempted to rape a woman after luring her to a house in Chak 392GB.

Meanwhile, the daughter of a resident of Chak 269RB, was the target of an attempted rape by Sajid.

According to a resident of Chak 127GB, Shahroz and Owais Ali allegedly sexually assaulted him while making a video, which they then shared on social media.

Iftikhar Ali allegedly attempted to rape a 20-year-old woman at gunpoint.

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Woman found dead – 12 Feb 2023

LAHORE: An unidentified woman was found dead in Raiwind City Police limits here on Saturday. A passerby spotted the victim lying in a pool of blood in a plot and alerted the police. A team rushed to the spot, removed the body to morgue and collected forensic evidence from the crime scene.

The body had torture marks. In another incident in Shahdara Town, a 40-year-old homeopathic doctor was shot dead at his clinic. Victim Dr Ejaz was at his clinic when two unidentified suspected motorcyclists shot him dead. —Correspondent

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Honey-trapping cases on the rise – 12 Feb 2023

Kidnappers adopt tactics used for ransom in riverine areas of Sindh

LAHORE:
The decades-old method of honey-trapping people and kidnapping them for ransom by criminals in Sindh has been adopted by gangs in Lahore.

Since September last year, at least five cases of abduction for ransom by suspects based in riverine areas were reported in the provincial capital.

The most recent case was registered in Chung Police station earlier this week, where Lahore Police are looking for a 60-year-old man, reportedly a victim of honey-trapping, who was allegedly abducted by suspects in a riverine area of South Punjab.

The victim, Tasweer Hussain, reportedly travelled to Khushab for work from his house in Chung, eventually losing contact with his family and causing his son to report his disappearance. His son registered a complaint before police after the family received a call for ransom. The suspected kidnappers had demanded a ransom of over Rs5 million.

After registration of the case, police launched an investigation and traced the ransom call to a riverine area in South Punjab. Lahore DIG Investigations Sohail Akhtar Sukhera took notice of the incident. Police said that they were investigating the matter and searching for the suspects involved in the bid.

In September last year, a man identified as Zubair and his uncle, Shaukat, were reportedly going to attend a marriage ceremony in Sukkur but went missing. Later, the family received a ransom call and they registered a case before police. However, police could only register an FIR.

Kidnappings by suspects in kacha (riverine areas) are not limited to Lahore only. In December last year, Nasir Mehmood from Gujranwala had also been abducted for ransom. The suspected kidnappers made video calls to the family while torturing the victim and demanded Rs5 million for his release. A case was registered at Peoples Colony police station. Two more kidnapping cases of a similar fashion were also reported from Gujranwala.

KACHA REGION’S NOTORIETY

Kacha is a riverine area along the banks of the Indus River, spanning upto hundreds of kilometers in Sindh and South Punjab. The presence of dense forests, swamps and a general lack of infrastructre have made it a haven for hardened criminal gangs. Due to the difficult terrain, it is virtually untouched by police and abductions for ransom contribute greatly to the economy of the area. Imdad Hussain Sahito stated in his book “Decade of the Dacoits” that the area has been in the complete control of criminals since 1980. Between 1984 and 1994, over 11,436 people were kidnapped for ransom and over Rs2 billion was collected by these suspects.

HONEY TRAP

Initially, the suspected kidnappers would target influential and wealthy personalities in adjoining districts and areas to lure them to their hide out and release them after receiving a ransom. However, with the passage of time, their methods evolved and for some time, both in kacha areas of Sindh and Punjab, kidnappers have been honey-trapping their victims.

The suspects would lure the victims by offering monetary benefits like getting them a tractor for cheap rates, buying them live stock and other hollow promises. Women luring victims through building a romantic relationship and enticing them to visit the area has also been employed as a tactic for quite some time.

Sindh Police have placed billboards warning people to refrain from being trapped by such calls or offers. As cases in the province started multiplying, Punjab Police have also run a campaign sensitising the public about honey-traps laid by suspects in kacha.

The Punjab Police and other law enforcement agencies have been at loggerheads for over a decade regarding the suspected criminals in kacha and launched many operations, causing the loss of lives and resources for both sides. The most notable operation, “Zarb-e-Ahan,” as carried out against the Chotu Gang.

Over the years, the police has developed a specialized “Riverine Patrolling Force” to operate and build strongholds in the difficult terrain where access by personnel is nearly impossible. In December of last year, the police also launched an app to track the activities of the Riverine Police as well as the kacha suspects.

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Policing the web – 13 Feb 2023

Wikipedia has once again become accessible in Pakistan, after Prime Minister Shehbaz Sharif ordered the PTA to unblock it, and asked the regulatory authorities not to close down sites without more protocol than seems to have been followed. A three-member committee made of ministers had looked into the matter and ruled that Wikipedia, used by students, researchers and nearly everyone else, needed to be restored, with the world commenting on Pakistan’s unusual ban on the site citing unsavoury content. But the matter goes a little beyond this. We know that PTA has blocked other sites in the past, including YouTube, which was banned for a number of years. And it’s not just the internet. Pakistan has been ban-happy even with entertainment media; only recently we saw controversy over the film Joyland, Punjab choosing to ban it from being screened. There have been other films too that have faced the cut this way. But when it comes to the internet, we should remember that the world wide web is a different beast. Bans or blocks don’t quite work the same way as states and governments think they do.

While the benefits brought to the entire world by the invention, growth and now ubiquity of the internet are plain for all to see, there is a downside as well. There’s indecent imagery, the dark net, and hate speech strewn all across the world wide web. It is virtually impossible to ban all of the sites that offer such content since any ‘ban’ can easily be circumvented through the use of proxy servers. Internet users the world over tend to be more tech-savvy than the politicians who for whatever reason wish to circumscribe their browsing habits. Which is why ‘bans’ tend to become something of an irrelevance in the face of a determined user population. What is the way forward then? Something that can negotiate the increasing value of an open internet without any ‘Great Firewall’ with a state that worries about the content that is accessible to its populace?

The only way forward, say digital rights activists, is to ensure that arbitrary bans are discouraged, users are treated as adults, and children’s usage of the internet is monitored at home by those that are supposed to monitor it: their parents. The state acting as nanny won’t help anyone – the state or the people. PM Shehbaz Sharif has made a good call. We hope that in the future the PTA can make better judgments in determining any potential blocking of websites – which in itself is a debatable way of blocking content in an age where it is virtually near-impossible to do so. The government needs to realize the futility of censoring the internet. Even if one website is banned for objectionable content, that same content can be reproduced on an indefinite number of other sites. Meanwhile, a ban only brings attention to the offensive content. That can hardly be what the government wants to do.

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Sense and nonsense – 12 Feb 2023

Despite the refreshingly clear judgment of the Lahore High Court directing the Election Commission of Pakistan to hold elections for the Punjab Assembly within ninety days of its dissolution, the whispers have not died down.

Some who should be striving to implement constitutional commands still feel they have an argument that can get them a judicial nod for delaying elections for the Punjab and Khyber Pakhtunkhwa assemblies beyond the 90-day period mandated by the constitution. The nod, it is said, would provide the space needed to disqualify Imran Khan, win back absolution for another and generally work on the political landscape to ensure ‘positive’ results. Holding provincial elections in April, as directed by the Lahore High Court, would not provide sufficient time for all that is to be accomplished. Constitutional fraud needs time, apart from powerful abettors.

As regards the argument of choice, it goes something like the following.

After the 18th Amendment, the constitution requires that elections to the National Assembly be held by the ECP while a neutral caretaker federal government is in place. Similarly, elections for the provincial assemblies are to be conducted with neutral caretaker provincial governments in place.

The question that some still propose to place before the Supreme Court is based on a fusion: given that the constitution appears to have adopted executive neutrality as a condition precedent for the holding of elections, is there not an unstated constitutional requirement that National Assembly elections be held only when there are caretaker provincial governments in place? If so, does it not follow that regardless of the express 90-day limit for the holding of elections after dissolution the tenure of the neutral caretaker provincial governments is to be extended for as long as is necessary to ensure that National Assembly elections are held under their watch? Is there, in effect, an unarticulated, dormant constitutional command that national and provincial elections always be held on the same day? While this line of reasoning is patent nonsense, desperate lunges towards the unthinkable have succeeded in the past.

The constitution has placed in the hands of the prime minister and the chief ministers the power to dissolve the national or the provincial assemblies prior to the expiry of the stipulated five-year term. This is a power each can exercise independently. This is a necessary consequence of Pakistan being a federation and not a unitary state. A chief minister whose majority hangs on the whims of a small set of members, under stress or lured by temptation into withholding support, may well decide to dissolve the assembly and approach the electorate for a more definitive mandate. Chaudhry Pervez Elahi may well have decided to dissolve the Punjab Assembly in July 2022. If the whisperers were to be granted their wish, the unelected caretakers would remain in office till the formation of new elected governments after the elections for the National Assembly, with provincial elections held concurrently.

The National Assembly is to complete its five-year term on August 18, 2023. The constitution provides that after an assembly completes its full five-year term elections are to be held within 60 days. This means that National Assembly elections must be held by October 18, 2023. This, it is suggested with a glint in the eye, is of course subject to the power available under Article 232 of the constitution to issue a proclamation of emergency and to extend by ordinary legislation the term of the National Assembly by one year in the event of war or external aggression or internal disturbances beyond the power of a provincial government to control.

In the event of the proclamation of emergency being based on internal disturbances, resolutions of the provincial assemblies of the provinces concerned are required. The president may also issue a proclamation of emergency on his own on account of internal disturbances. In such a situation the proclamation of emergency is required to be approved by both houses of parliament separately, within ten days.

Leaving to a side the possibility of an extension in the term of the present National Assembly, let us examine the argument for extending the term of the caretaker governments in Punjab and Khyber Pakhtunkhwa through judicial approval and postponing provincial assembly elections to the same date as the National Assembly elections.

The constitution is a structure that states the rights and duties of persons coming under its sway. It also states the powers, and the limits to the exercise of those powers, of the various institutions, authorities and offices created or regulated by or under the constitution. Some provisions of the constitution are procedural and determine how particular actions are to be undertaken. The ensemble of the procedures, rights, duties and powers stated by the constitution not only provides a structure of governance but also affirms certain values and principles that are considered essential to attaining the purposes of the constitution. The text of the constitution that exists today has emerged over time with multiple amendments made to the original text. The original text as well as the amendments reflect political compromises between political, and in our case extra-political, forces.

It is in the very nature of the written word that it is capable of varying interpretations. Words are assigned meaning by the judiciary through complex processes of reasoning. The plain meaning of the text of the constitution is viewed through the lens of what each judge sees as the context, or the purpose of the language employed by the drafters. It is here that conflict over interpretation arises. Judges may disagree over the possibilities inherent in the text and the scope of the principles the constitution requires them to uphold while interpreting the constitution. Judges may not lean in favour of one political outcome over another.

Adding to the complexity inherent in the act of interpretation, the Supreme Court has identified certain aspects of the original constitutional text as its salient features that cannot be subdued by any subsequent constitutional amendment. Such amendments are to be either struck down by the judiciary or interpreted so as to conform to the salient features identified by the Supreme Court. The salient, unamendable features of the constitution identified by the Supreme Court include its federal, democratic and parliamentary structure along with the independence of the judiciary and the position occupied by the Islamic provisions.

Prior to the 17th and 18th Amendments, of 2003 and 2010 respectively, there was no concept of caretaker governments in the constitution. Outgoing administrations were to assist the ECP in conducting provincial and national elections. The amendments that introduced caretaker governments left untouched the right of the people to have democratically elected assemblies and governments restored within ninety days of a dissolution. Any intrusion into the text of the constitution denying the people elected provincial governments by linking the restoration of such governments to federal elections would have violated every salient feature of the constitution recognized by the Supreme Court through successive judgments. This was deliberately not done by either amendment.

Article 2A declares that sovereignty is to be exercised as a sacred trust by the elected representatives of the people. In a federation a part of that sovereignty, within the fields and territory specified by the constitution, is to be exercised by elected provincial governments. The parliamentary form of government instituted by the constitution requires that such governments be drawn from elected assemblies. The federal structure of the constitution prescribes distinct timelines for national and provincial assembly elections based on the date of dissolution of a particular assembly.

The introduction of an unelected caretaker administration for performing narrow day-to-day functions for no more than 90 days is a limited departure from the essential democratic, parliamentary and federal structure of the constitution. No unarticulated principle can be derived from this departure to overcome the express provisions of the constitution that require elections within 90 days of the dissolution of an assembly and that do not require that provincial and federal elections be held on the same day or on days that are closely bunched. The provision in the constitution that protects the validity of actions taken beyond the timelines prescribed for such actions is not an invitation to plan and execute violations of these timelines. It caters for unavoidable exigencies; it does not provide a licence for deceit. Sense must prevail.

The writer is an advocate of the Supreme Court of Pakistan. He tweets @salmanAraja and can be reached at: salmanr2002@hotmail.com

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