Imperatives of the Constitution

‘Law is the command of the king’ or ‘I am the law’ were the norms of yester years. Gone are the days when people were ruled by the whims of the king. In all civilised countries, the king rule has now been replaced with the rule of law.

Constitution, whether written or unwritten, is the supreme law that demarcates spheres of functioning of all organs of the state as well as rights and duties. All laws, rules and policies have to be in conformity with this basic document.

Constitution, being a social contract, binds people with the state. Therefore, imperatives of the Constitution are to be followed for a just order in the country. These imperatives are: sovereignty belongs to Allah — a sacred trust that is to be exercised by the chosen representatives of the public; parliamentary and federal democracy, federal list and the residue; all acts are to be in accordance with law; fundamental rights; trichotomy of powers; independence of judiciary and the Supreme Court of Pakistan as the final interpreter of the Constitution.

All the aforementioned basics are interlinked, and a smooth functioning of the state depends upon the observance of these basics.

However, a new political and legal debate has ensued after the Supreme Court, in exercise of powers under Article 184(3) of the Constitution, took cognizance of the delay in holding of election to the dissolved assemblies of Punjab and Khyber-Pakhtunkhwa; declared the Election Commission of Pakistan’s decision dated 22.03.2023 “unconstitutional, without lawful authority or jurisdiction, void ab-initio, and of no legal effect”, whereby elections were delayed to October 8; and directed the electoral watchdog to hold elections on 14 May, 2023.

Just about the same time, a three-member bench of the top court, headed by Justice Qazi Faez Esa, ruled with a 2-1 verdict that all cases under Article 184(3) be postponed until amendments are made to the Supreme Court Rules governing the Chief Justice’s discretionary powers.

As the two judgments are now public documents, they are open to academic discussion and analysis. Even though the apex court has given its legally-binding word on the issue of election delay, the public and the experts are divided as to its acceptance.

The learned judges of the Supreme Court and High Courts as well as members of Bar Councils and Bar Association are well aware of the scheme of the Constitution which envisages democracy and sovereignty of the people. Everyone having knowledge of democratic values and conventions and provisions of the Constitution knows that the edifice of democracy stands on the foundation of people’s sovereignty which, in turn, is reflected through vote. Therefore, politics and law cannot be separated from each other. In fact, all affairs connected with the state fall within the scope of politics and the Constitution.

In this context, delay in elections and avoidance of transfer of power to the chosen representatives of the people revolve around enforcement of fundamental rights and public importance. Article 184(3) explicitly says that without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article.

A plain reading of the aforementioned Article suggests that Supreme Court can intervene whenever the question of public importance regarding enforcement of fundamental rights arises. Unfortunately, amid the raging debate on the suo motu powers, the real issue of holding elections within the constitutional timeframe under the Elections Act, 2017 is pushed into the background.

But, all these luminaries of law have perhaps forgotten that the judicial system in Commonwealth countries, including Pakistan, is based on the principles of common law. This law is a body of unwritten laws based on legal precedents established by the courts. Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. Therefore, the argument regarding framing of rules for suo motu powers does not appear to be very convincing.

To be fair, what else than the right to vote could be a more important issue concerning the sovereignty of the people? Since holding of free and fair elections is a constitutional imperative, how can it be ignored?

One wonders if the heavens will fall if elections are conducted within the constitution timeframe! Can we afford to see the doctrine of necessity stage a comeback? Shouldn’t the honourable bench members get to the bottom of the problem, instead of indulging in legal hair-splitting, and agree on the holding of elections within the constitutional timeframe? Let the rule of law prevail and the doctrine of necessity rest in peace. Let the imperative of the Constitution be implemented.

There are reports that the government — fearing a rout at the ballot — is even considering the option of imposing emergency rule on the pretext of the re-emergence of terrorism in the country, so as to delay the elections. The government is humbly advised that the only go-to option is to abide by the constitutional imperatives and hold election to the two dissolved legislatures as ordered by the Supreme Court of Pakistan.

Published in The Express Tribune, April 12^th, 2023.

Like Opinion & Editorial on Facebook, follow @ETOpEd on Twitter to receive all updates on all our daily pieces.