Suo motu hearing – 24 Feb 2023

The Supreme Court is seized with an existential issue of parliamentary democracy

The Supreme Court is seized with an existential issue of parliamentary democracy. A nine-member bench of the apex court is hearing a suo motu case as to who has the constitutional authority to announce the date for elections to a provincial assembly. Chief Justice Umar Ata Bandial, while invoking the discretion, also wants to resolve as to how and when the constitutional responsibility to call in elections should be discharged, and what are the responsibilities and duties of the federation and the province with regard to the holding of general election. Quite a pertinent task, as the top court goes on to address the apparent lack of clarity on the matter, intuitively paving the way for constitutional superiority. What necessitated this exigency is the inability of the provincial governors of Punjab and K-P and the Election Commission to come up with dates for elections, forcing the President to announce it in his proclamation.

While the hearing will resume today, there are some arguments that are setting in impediments. First, Justice Jamal Khan Mandokhail has come up with reservations over invoking of suo motu jurisdiction; second, Justice Athar Minallah has questioned the very validity of provincial legislatures’ dissolution; and third, Justice Mansoor Ali Shah has gone on to seek restoration of provincial assemblies if they were dissolved without lawful writ. Likewise, to hamper the smooth functioning of the bench, the Pakistan Bar Council has raised concerns over the non-inclusion of puisne judges, Justice Qazi Faez Isa and Justice Sardar Tariq Masood in the bench. How this is responded to by the chief justice solely depends on his lawful domain. So is the case with another honourable judge who has been voluntarily asked to recuse on political assumptions.

The fact is that elections in Punjab and K-P are due within 90 days of their respective assemblies’ dissolution. The constitution is clear and categorical on it, and the February 10 order of the Lahore High Court testifies to it. The apex court while dilating in its judicial review will surely come to embolden the spirit of the Constitution, and address executive lacunas in all certainty.

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