The government’s options – 06 Apr 2023

The Supreme Court ruled on Tuesday that the Election Commission of Pakistan’s (ECP) decision to postpone polls to the Punjab Assembly till Oct 8 was unconstitutional, and fixed May 14 as the date for polls in the province. The government has rejected the verdict, but what are its options?

The first option could be filling a reference against the judges that delivered the verdict. PML-N supremo Nawaz Sharif has demanded to file a reference of misconduct in the Supreme Judicial Council against Chief Justice Umar Atta Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar following the verdict. However, this may not be a sweet option for the government, since Article 209(5) of the constitution states that if, on information from any source, the council or the president is of the opinion that a judge of the Supreme Court or of a high court may be incapable of properly performing the duties of his office by reason of physical or mental incapacity or may have been guilty of misconduct, the president shall direct the council to, or the council may, on its own motion, inquire into the matter.

In the case of Justice Qazi Faez Isa, the majority, while quashing the reference and finding President Arif Alvi negligent, held that one cannot lose sight of the special constitutional status assigned to a presidential reference under Article 209(5) of the constitution. Unlike other complaints received by the council, which can be discarded without any formal enquiry, a presidential reference, however, commands a mandatory enquiry by the council. Therefore the decision-making process leading to the president sending a reference to the council under Article 209(5) deserves careful and thorough deliberation by him.

The judgment also held that it was in fact the president who would decide whether to send or not send a reference, and the cabinet’s advice was not binding on him. Clearly, looking at the political position the president holds, he will shy away from sending such a reference and therefore this option would be a futile exercise by the government. In any event, such a reference would not overturn the order itself, unless it is done so in appeal. This brings us to the second option.

The second option is to not implement the order, either at all or at least temporarily by not cooperating with the Election Commission. Let’s deal with the obvious first: what if the government just does not implement the order? In that case, proceedings of contempt will start. In such a case, one can easily point to the case of Yousaf Raza Gilani, where for willful contempt the Supreme Court pronounced a sentence till the rising of the court, which was mere seconds. The result however was that Pakistan got a new prime minister. The vacancy may open again, if the order is completely disregarded, since any finding of contempt leads to disqualification under Article 62 and Article 63 of the constitution.

Yet there is merit and substance in delaying the matter, and the numbers game kicks in here. The right of appeal for final orders of a bench of the Supreme Court which exercised jurisdiction under Article 184(3) of the constitution will lie to a larger bench of the Supreme Court, and the said appeal has to be fixed within a period not exceeding 14 days as per Section 4 of the Supreme Court (Practice and Procedure) Bill, 2023. What is even more interesting is that in Section 2, the bench that will hear the appeal will be formed by the chief justice and two senior most judges by majority.

The bill was passed on March 30. According to Article 75 of the constitution, for a bill to become an act and therefore valid and enforceable law, when a bill is presented to the president for assent, the president shall within ten days either assent to the bill or return the bill to parliament to be reconsidered. However, if the bill is passed again in original form, it automatically becomes law after ten more days, whether the president then assents or doesn’t. Once again, the president has to play a role and it seems he will not give his assent. In such a case, the bill will become law on April 19.

The Supreme Court has set the date for the elections in Punjab for May 14. However, the final list of candidates must be issued by the Election Commission on April 19, the day the bill will become law, and the next day will be the last step before polling – allotment of election symbols to contesting candidates. If the schedule is delayed only by a few days, the government may file an appeal and may even obtain a stay order. The only other way would be outrageous, which brings us to the third option.

The third option is to declare a state of emergency and postpone the elections. The entirety of Part X of the constitution deals with emergency provisions. The federal government may issue a proclamation of emergency on account of war, internal disturbance, etc or in case of failure of constitutional machinery in a province, however subject to the approval of parliament. The government has a clear majority there; nothing could go wrong. But subcontinental courts don’t like proclamations of emergency. The example of Musharaff’s emergency is still fresh, when the Supreme Court went to extraordinary lengths and even issued an interim order against it. It does not seem the government will take this option either as this will cause a plethora of political baggage and would be disastrous for a country on the brink of economic collapse.

The only option it seems, is for the government to file an appeal on April 19, when the Supreme Court (Practice and Procedure) Bill, 2023 will become the Supreme Court (Practice and Procedure) Act, 2023, and thus the law of the land.

The writer is a Karachi-based barrister practising constitutional and administrative law.

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