Elections are a sine qua non for democracy

Supreme Court’s landmark judgment in a suo motu case dealing with the delay in holding election to the provincial assemblies of Punjab and Khyber-Pakhtunkhwa has evinced a national debate. The Supreme Court has ordered election to the dissolved provincial assemblies to be held within 90 days, in pursuance with the stipulated dictum of the Constitution. The apex court also determined the crucial issue of who is responsible for announcing the election date, ruling that in the case of Punjab, President’s April 9 date is ‘constitutionally competent’ because the assembly had not been dissolved by the Governor, while in the case of K-P, the date announced by the President is invalid, and the Governor shall announce the date in consultation with the ECP because the assembly had been dissolved by the Governor on the advice of the Chief Minister. The top court also directed the ECP to be ‘proactively’ available to the President or Governor for consultation on dates.

The split 3-2 judgment has, however, triggered a heated debate, with both the government and the opposition interpreting it to their favour and declaring it as their victory.

On one side of the divide are those who opine that the Constitution is clear that election to a dissolved assembly has to be held with 90 days; and that the case should not even have gone to the Supreme Court. But they also find the judgment ambiguous, given the leniency that the ECP can deviate from deadline to the ‘barest minimum’. They insist that it leaves it to the subjective whims of the electoral body, creating confusion over determining the minimum deviation. As a consequence, delay in elections cannot be ruled out.

It is also believed that the split judgment has further complicated the issue, as the ECP has to announce the date, which may further lead to political acrimony and turmoil. The specific footnote by two dissenting judges has also provided enough material to the government’s team to build their case, arguing that the Supreme Court’s was a 4-3 majority decision in their favour, and not a 3-2 verdict against them. However, most legal experts opine that the government is stretching too far to derive their own meaning.

Banking on the dissenting note by two judges, Law Minister Azam Nazeer Tarar and Attorney General Shehzad Ata Elahi insist that there is no need to file any review petition before the Supreme Court nor is there the need for further interpretation.

Contrary to the view held by the government, many of the jurists are of the view that the 3-2 judgment will hold good, as there were two different benches at two different points in time and any conflation of the two was ‘absurd and illogical’.

From the divergent view explained above, it appears that attempts are being made to blur the real issue in the welter of controversy on whether suo motu action should have been taken or whether the issue should have been heard by full court.

Setting aside the technicalities and legal intricacies, the main issue is transfer of power to the people through their chosen representatives. Can they be deprived of their fundamental right to elect representatives of their choice? Can there be taxation without representation?

In this context, the judgment has rightly pointed out that “Parliamentary democracy is a salient feature of the Constitution. There can be no parliamentary democracy without Parliament or the provincial assemblies … And there can be neither Parliament nor provincial assemblies without the holding of general elections as envisaged, required and mandated by and under the Constitution and in accordance therewith.”

The aforementioned discussion expresses the scheme of the Constitution. Under the rules of interpretation, and views of the Apex Courts, a constitutional instrument has, in first instance, to be interpreted in the same manner as any other statute and the cardinal rule here is that the function of the court called upon to interpret any of the provision is to ascertain the intention of the makers of the Constitution from the words used which must receive their natural and ordinary meaning. Where the words are clear and establish only one meaning, that meaning is to be assigned to them even if the result is harsh and/or absurd, as the Court is not concerned with the policy of the Statute. Furthermore, a constitution has to be read as whole and every clause and word of it must be given full effect. The Court should avoid a construction which renders any provision meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory.

From the forgoing discussion, and reading the Constitution as a whole, it is clear that the Constitution of Pakistan sets up a Federal Republic with a Parliamentary form of government for both the Centre and the provinces. In essence, foundation of the Constitution is democracy.

Paragraph 3 of the preamble of the Constitution, emphasising the representative character of the polity, states it to be the will of the people and that the State should exercise its power and authority through the chosen representatives of the people, with the persons exercising its power being representatives because they are chosen by the people. The intention of the legislature for all purposes is to establish a representative form of government as understood in the constitutional law. Therefore, no deviation can take place on one pretext or the other.

The upshot of the aforementioned deliberation is that democracy cannot function without chosen representatives and chosen representatives cannot be there without elections. Therefore, after the dissolution of assemblies, holding elections is sine qua non for democracy.

Published in The Express Tribune, March 8^th, 2023.

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