The doctrine of necessity and the PDM government  

Will provincial polls be held?

A Letter from Prometheus

As expected, the Election Commission of Pakistan (ECP) did not get financial, administrative, and security support for holding provincial elections in KPK and Punjab. Even the Lahore High Court regretted i could not provide judicial officers to act as Returning Officers. The Pakistan Army had already announced its regret to provide staff due to the grave law and order situation and rising terrorism in the country that was triggered after the former PTI government invited terrorists living in Afghanistan to come back home and resettle here.

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The financial situation of the country need not be discussed because everybody knows the country is living in financial collapse. However, another bad news came for the government when the International Monetary Fund (IMF) on Thursday released a statement and said that it had nothing to do with the postponement of provincial elections and stated that there was no requirement under Pakistan’s EFF [Extended Fund Facility]-supported program, which could interfere with Pakistan’s ability to undertake constitutional activities.

There is no doubt that the Constitution is very clear about holding elections within 90 days after the dissolution of the provincial assembly by the Chief Minister. The Supreme Court had already directed the ECP to hold elections within the stipulated time. However, the system that runs the state believes that the desire of Imran Khan (who is also known as “Ladla Khan”) is not as important as the survival of the country. On the other hand, constitutional experts believe that the desire of Khan is constitutional and the execution of his desire is a must for all under the orders of the Supreme Court which is the defender of the Constitution.

We have seen in the past that several times the Supreme Court fixed the Constitution according to the demands of the superclass, particularly in the General Musharraf case. Our history confirms that the Supreme Court supplied whatever was demanded by men in uniform. Since neither Imran Khan is wearing a uniform nor are uniformed officers standing with him thereby we will see whether he would get what he wishes from the house of justice or not. We had seen that Imran’s stars of Thana (police station) and Kacheri (Courts) are stronger than the state and he gets whatever he wishes. The Supreme Court Bar Association has also released its concern over the situation so technically speaking the bar and the Bench are standing together to protect the Constitution.

Meanwhile, after less than two months in office, Barrister Shehzad Ata Elahi resigned as Attorney General for Pakistan and it was again confirmed that PDM has the weakest legal team any government had ever had in Pakistan. During the entire proceedings in the Supreme Court election suo motu case, the Attorney General for Pakistan refrained from raising the issue of the dissolution of provincial assemblies and the admissibility of the action though the action was constitutional but it was clear that both chief ministers dissolved assemblies to satisfy the ego of their supreme leader Imran Khan.

If we see at the broader spectrum even the military establishment has no such personalities as Aziz A. Mushi or A.K. Brohi who knew how to deal with the situation. Legally, the PDM is a defeated government and it won hardly any case in higher courts because of the ineffectual team it had gathered around it. The PML(N) as a political party did not raise its legal team except for three or four personalities in past.

One of them was former Chief Justice Saqib Nisar who was considered a very close ally of the Mian family.  Another was the late Justice Malik Mohammad Qayyum and the third is Ashtar Ausaaf Ali. Former Chief Justice Saqib Nisar was appointed as Law Secretary at the Ministry of Justice and Law– a chief bureaucratic position inside the law and justice ministry on 29 March 1997. His appointment as a law secretary was noted as the first time in the history of the country that someone from the Bar had been appointed to such a post. On 22 May 1998, he was elevated as a judge at the Lahore High Court after a nomination summary sent by the then Prime Minister Sharif, only to be confirmed as a judge of Lahore High Court by then-President Rafiq Tarrar.

This is the first time in Pakistan that a fight is going on between the retired superclass and the serving superclass and the Almighty knows what would happen inside the political arena of Pakistan in the forthcoming days but there would surely be historic scenes to observe.

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Ashtar Ausaaf Ali at a very young age fought a historic constitutional case that was Prime Minister Nawaz Sharif versus State in 1993. He successfully represented Sharif before the Supreme Court of Pakistan against the dissolution of Parliament by the then President Ghulam Ishaq Khan and won the case. The Supreme Court overturned the dismissal. However, Nawaz Sharif after his restoration as Prime Minister resigned because the military establishment was not ready to accept him. Ausaaf had been a symbol of the legal power of PML(N) but his health issues compelled him to stay home, resulting in the appointment of two Attorney Generals for Pakistan within a short period of four months.

His resignation was formally accepted on 19 January 2023, after the designated Attorney General, Mansoor Usman Awan resigned and then Barrister Shehzad Ata Elahi was appointed as Attorney General for Pakistan. He also resigned on personal grounds after watching the grave situation that the PDM government is going to face in the Supreme Court sooner or later. His close circles indicate that he (Barrister Shehzad Ata Elahi) doubted that any judge sitting in Supreme Court would easily be available to act as Justice Irshad Hasan Khan. I also doubt that the “doctrine of necessity” would be used again by the Supreme Court as it did last time on May 12, 2000.

The Supreme Court is already facing a credibility crisis and journalists who cover higher judiciary claim that a perceivable divide is there in the judicial hierarchy. However, some of the senior journalists believe that the Supreme Court would strike down ECP’s decision not to hold provincial elections if a Full Court is constituted since no judge would be ready to use the “doctrine of necessity” because of the credibility crisis. Moreover, PTI is considering holding provincial elections on April 30, the date SC has given the ECP for holding provincial elections. The PTI is planning to establish polling stations all over Punjab and KPK on April 30, and asking its voters to come and vote for its candidates. The PTI is also planning to invite international election observers such polls would not have any legal status but would have a far-reaching impact on the political status of PTI and it would emerge as a party protecting the rule of law and constitution in the country.

This is the first time in Pakistan that a fight is going on between the retired superclass and the serving superclass and the Almighty knows what would happen inside the political arena of Pakistan in the forthcoming days but there would surely be historic scenes to observe.

Agha Iqrar Haroon
Agha Iqrar Haroon
The writer is an international award winning journalist who has been in the field since 1988 and appears in national and international media as analyst and political scientist.


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