Everyone seems to agree that Imran Khan and the PTI won a great victory when the SC ruled that Punjab and KP Assembly elections had to be held in 90 days, a victory great enough to justify calling off the party’s Jail Bharo Tehrik. However, it seems to have escaped notice that this ‘victory’ has not yielded the result that the PTI sought, which were general elections. Indeed, as the date for the expiry of the tenure of the current National Assembly approaches, it seems that it is increasingly likely that Imran will get his wish, but without the premature dissolution he also craves.
It is difficult to see how the Bench could have said that elections did not have to be held in 90 days, as prescribed by the Constitution. Such a ruling was made impossible by the failure to bring forward the reasons why the Election Commission of Pakistan may not conduct the elections on time: the failure of the Finance Ministry to provide the needed money, of the Defence and Interior Ministries to provide the personnel needed to fill the shortfall in the Punjab police for meeting security needs, and of the LHC in providing subordinate judges to act as ROs and AROs.
That elections have to happen is clear. But they have to be conducted. If the Executive continues to drag its feet, can the judiciary force it? More than which party wins, than which judges hear a case, this principle is at stake
Those are areas the ECP had already tested, and may still provide a reason for postponement. These are very basic concerns, with the most important issue being the appointment of ROs. The first step of the election process will be to obtain nomination forms. If ROs are not appointed, there will be no one to provide the forms. Those forms need money to be printed.
Even if the ROs manage, in the words of the proverb, ‘to fry pakoras with spit’, that will not let them secure the polling stations without personnel. As the terrorist threat has recently grown in KP, secure elections are all the more a challenge.
Apart from the polling staff, the security personnel are to be paid for election duty. There seems no point in discussing whether the payment is adequate or not, when the money is simply not there. The option of asking for volunteers is not available if the poll is to be fair, because those who provide their services free to the ECP, may well charge candidates for their services.
The ECP has been ordered to hold polls, but the departments it is approaching have not been so ordered. The SC must be cautious in ordering those departments, as it must avoid passing an order that is not obeyed. It has already done so, and the disobedient party was the ECP, in the matter of holding the Islamabad local body poll. If there is no money, there is no money. The SC could conceivably order the State Bank of Pakistan to print notes and make them available to the ECP, but it is not just unprecedented but highly unlikely. At the same time, the SC might find that other governments seize on this precedent to defy its orders.
There is also a rather knotty problem involving the ROs. The alternative to issuing orders to the Lahore and Peshawar High Courts is for the ECP to ask the Punjab government to provide ROs. The PTI may not like this, for it has already raised questions about the neutrality of the Punjab caretaker CM. The same applies to KP.. Losing the election would mean the party launching a movement with the ROs as an excuse.
So far, the issue of the census has not been raised officially. The main problem foreseen, that the next national, Sindh and Balochistan elections would have to be held under the new census, while the Punjab and KP Assemblies are held under the 2017 one, has been expressed at last by a politician, Bilawal Bhutto.
True, while an anomaly, it would remedy itself in future elections, but an anomaly which would not be eliminated, would be that the Punjab and KP elections would be permanently separated from the other elections. Only if the other assemblies were to be dissolved so that the ECP could conduct same-day elections would it be possible to rectify this.
Another issue built into the separation of polls will be witnessed when the national polls are held. It is constitutionally required that caretakers come into place. Does that mean the new provincial governments, have to be displaced? Will a fair national poll be possible in two provinces with a partisan government? The Constitution does not say how this is to be resolved. It should also be noted that this particular can of worms will burst open around the time the present Chief Justice of Pakistan retires.
As it is, the Punjab Chief Ministership becomes another issue, but mainly for the PTI. Shah Mahmood Qureshi and Fawad Chaudhry have their hats in the ring, and now Hammad Azhar has emerged as a replacement for Aleem Khan. Ch Pervez Elahi remains a candidate, and though Usman Buzdar seems to have faded, he cannot be ruled out if Imran wants someone he can use as a puppet who will let him be Punjab CM as well as PM. The over-abundance of contenders for the Punjab top spot has made some predict that Imran would not mind a postponement.
The problem is that there does not seem a way to postpone the poll. That is possibly because Pakistan came out of India, which itself was a federation of provinces. This is because India was initially colonized by the East India Company which initially established three factories at Bombay, Madras and Calcutta, making the last Governor-General.
The basis of the Raj was the provinces. One effect was to have high courts in all provinces, obtaining independent charters. A Federal Court (later the Indian SC) was only established by the Government of India Act 1935. One result was that, before that, appeals ying only to the Privy Council in the UK, high court decisions had usually been final, for few had the money or leisure to go all the way to the UK to prefer an appeal. One consequence is that the Lahore and Peshawar High Courts, or rather their re-1973 Constitution progenitors, are older than the SC’s.
Another aspect is that the provincial governments are more vigorous than the federal, having health, education, and law and order as exclusively provincial subjects. Thus while the Constitution provides for the National Assembly to prolong its life, if a Proclamation of Emergency has been made, by a year, there is no similar provision of postponement of provincial elections.
That implies that if there is a financial or other emergency declared, the federal government may use its powers to take over the powers of the provincial government and of the provincial legislature, but it cannot prevent elections taking place. True, the assembly elected would not be able to pass legislation, nor could it yield a government, at least during the pendency of the Proclamation. As soon as it is lifted, it would both legislate and elect a CM. However, such a situation would only be produced if the Proclamation of Emergency was upheld. That might not happen, at least not on Chief Justice Bandial’s watch.
But has the SC passed an unenforceable order? In theory, the SC may forbid the sun to rise, but will it be obeyed? And if the government agencies told to ensure this are punished for contempt, will this stop the sun?
That elections have to happen is clear. But they have to be conducted. If the Executive continues to drag its feet, can the judiciary force it? More than which party wins, than which judges hear a case, this principle is at stake.
