The constitutional chalice

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A constitution is like a strong tether binding a nation together under an agreed social, economic and political compact, protecting the human, political, social and economic rights and interests of its various components, ethnicities, religions and genders, peoples and regions. While owning formidable strength, it is like a delicate chalice made of the slightest glass that constantly, actively and deliberately needs to be protected and nurtured, even if altered or improved to mutually agreed advantages.

How come there is widespread consternation over the recent national developments and concerns regarding the setting up of avoidable precedents for violation of the constitution? Are these fears real or are exaggerated? Is the situation more alarming than it was while Pakistan was struggling to make an agreed constitution for itself during the unstable period of 1947-1973 when for, inter alia, the failure to resolve the political, economic and constitutional aspects of nationalism, half of the country was lost?

The 1973 Constitution arose like a phoenix from the ashes of despondency and dejection. If we could evince such strong resilience and national unity once, is it impossible to repeat it?

In the present political and judicial imbroglio, compounded by the occurrences, concurrently, of acute economic and security issues, one side emphasises that it is the government and parliament which are violating the provisions of a laid-down period for elections as per the Constitution.

On the other hand is the contention that it is the Supreme Court that "by rewriting Article 63(A)" set the ball rolling downhill. These are words of Justice Mazhar Alam Khan Miankhel who sat on the five-member SC bench which heard the Presidential reference.

There clearly appears to be a gap between appearances and reality, between what is apparent and contained in the kernel of truth.

How is this chasm to be bridged? Perhaps Gramsci has the answer in a theoretical rather than historical perspective where every epoch is marked by the ruling and the ruled, creating a "hegemony of consent" or what is palmed off as "accepted common sense".

Supreme Court has the primary function of "interpreting" and doesn't have powers (under the Constitution itself which spells the limits of powers of each arm of government) to "rewrite" the Constitution or pass a judgment that amounts to altering or "amending" it.

Only the National Assembly, as stipulated in the Constitution, has – it is rightly asserted – the power to amend or change the Constitution by a two-thirds majority vote, except for its essential features as spelled out by the Supreme Court in, among others, the Zafar Ali Shah judgement (PLD 2000 SC 869).

The Supreme Court, by so rewriting Article 63(A), led to the result that 19 votes of defecting PTI Punjab members, who voted a PML-N government leader as Chief Minister, were excluded from voting in the Punjab Assembly, resulting in the collapse of the Punjab provincial government led by PML-N.

In the subsequent bye-elections, PTI won back 15 Punjab Assembly seats leading to election of Pervez Elahi instead as CM Punjab.

Under Article 63 (A), unlike in the contentious SC judgement, the votes of PML-N defecting members would have had to be counted, although subsequently they would have been unseated or disqualified on reference by ECP to the Supreme Court, if so decided.

Had the PML-N government been intact, the dissolution of the Punjab government on the PTI chairman's directions would not have been possible. In that way, the question of a 90 days election to Punjab would not have arisen – something that is at the heart of the present political and judicial crisis.

The judgement on Article 63(A) was petitioned for review in Supreme Court. It would have been proper and just if the Supreme Court had – before taking up, peremptorily, in suo motu jurisdiction, the matter of 90 days election – decided the Article 63(A) Review Petition since it is that which preceded, in time as well as in juridical sequence, the issue of declaring Punjab elections. (Surprisingly the issue of 90 days election to the Khyber Pakhtunkhwa Assembly is hardly being pressed when it was dissolved on 18th January while the Punjab Assembly stood dissolved on 14th January, 2023.)

Elections on different dates to the Provincial and Federal Assemblies could possibly, it is argued, jeopardise the holding of free elections if elections to the National Assembly seats (out of 342 seats Punjab has 178 seats; any party winning a majority in Punjab will have a far greater chance of making a government at the Centre) in the Punjab are held not under a caretaker government, as required under the Constitution but under a sitting provincial government wielding responsibility for overall administrative and security during elections.

An amendment to the Constitution was instituted with the express aim and purpose to ensure that all elections, both federal and provincial, are held under caretaker, neutral governments ensuring that results thereof are not made contentious ensuring national acceptance of their validity and the legitimacy of governments so formed.

Elections with the slightest taint or perception, real or contrived, of rigging – as witnessable in USA in its 2020 elections, or as was the case in the 1975 Pakistan elections – can have alarming consequences for political polarisation and national unity.

The wider issue of the consequence of such elections for long-term stability as well as keeping the federation united is more than pertinent in view of the far greater role and powers of resource distribution and sharing that the central government plays in our federal set-up. Can we afford exacerbating already existing regional tensions and disaffections?

Rather than blaming who is cracking the constitutional chalice, can we relive the larger, tolerant and inclusive spirit that infused the creation of an agreed 1973 Constitution that everyone whole-heartedly seems to be agreed upon? A leap of faith is required on part of all and sundry.

The all parties agreement, however tensile and fraught with risks, to find a solution to the elections issue through political negotiations may yet be a sign of hope. But hope itself needs protection through responsible tolerance, fed by a non-partisan, inclusive, national spirit.