Supreme Court is an important constitutional pillar of state and is an arbiter of disputes to ensure justice based on the law that is in force. Supreme Court cannot draft laws but can interpret them. It can issue a directive to parliament to consider amending a law but it cannot force parliament to draft a law the way they want it.
Based on the above the Supreme Court verdict about the disqualification of a party head has been made in a haste without considering all articles pertaining about it and is in violation of the constitutional scheme of the balance of power between state institutions. Supreme Court is acting like a political party seeking political power rather than a non-political entity to be an arbiter between various political parties. This new role will add to political uncertainty and deteriorate the state. I have arrived at this opinion based on the following:
– Parliament exercised its constitutional right and passed a law that a disqualified person can head a party. Some political parties, although their members voted for it, disagreed with that law and approached Supreme Court. It was their right and Supreme Court mandate to hear the petition. The law was to be in force until the day verdict was issued repealing it this means decisions taken by a party head cannot be considered null and voice until the day the law was repealed. This suggests verdict seems to be driven more by impacting politics rather than upholding the law.
– By rejecting the decisions of party head between the time of passage of article 203 that was passed by parliament and repealed by Supreme Court would mean that parliament does not have the right to legislation. This is a much more serious situation and will have an impact on future legislation. This breaks the constitutional order between state institutions and put them on a path of confrontation. On the positive side, parliamentarians have to now act in a manner to legislate for the nation rather than to facilitate a person, family or a party.
– Supreme Court was fully aware that Senate elections will be held in few days but did not give any instructions to ECP about it although the verdict has a direct impact on it. This has created uncertainty about Senate elections despite repeated promises by Chief Justice that Supreme Court will not impact elections or derail democracy. Supreme Court did not give any consideration to a large number of candidates and elected MPA that are impacted by the verdict. This suggests that Supreme Court considers itself superior to the sovereignty of people and remain indifferent to the rights of agents elected by it. This strengthens the popular perception, I hope wrongfully, that Supreme Court is undermining democracy and is erecting hurdles in organizing elections not just for Senate but also general elections. There is unceasing chatter on social media that Supreme Court wants to install a technocrat interim government for a longer duration using a technicality. Supreme Court could have rejected these speculations by issuing instructions to ECP that a party whose head is disqualified should be given a chance to resubmit their tickets signed by new party head. Delay in Senate election based on this verdict will create political chaos and instability because of timing and ambiguities in the verdict
While hearing the petition on article 203 of Election Bill 2017 the Supreme Court did not pay any attention to some other articles that have an impact on it which suggests that a holistic view was not taken in considering a verdict and the verdict was issued in a haste to punish one particular person. Supreme Court ignored following:
– Party heads are elected based on party constitutions that should be in conformity with the constitution of the country. The Supreme Court verdict remain silent on asking ECP to ensure all party heads are elected in compliance with their party constitution. ECP recently rejected petition of a party member that PTI office holders conducted an illegal and unconstitutional intra-party election. It was a surprise verdict as a blatant violation of party constitution was committed to installing party head. That decision of ECP will be taken to the Supreme Court to seek protection of party members right. This will provide an opportunity to ascertain if there are ladlas in the country that are being facilitated.
– 18th amendment and certain provisions in Election Bill 2017 granted extraordinary powers to party head and introduced civilian dictatorship in the country. Supreme Court did not bring that article under discussion during the hearing as it impinges on rights of party members to nominate their candidates to contest the election. Candidates in the current scheme of things are subservient to whims and wishes of a single person as a party head. This forces them to be loyal to the party head rather than to party ideology, its members, and merits of a law. Removing this condition would have made it irrelevant who is party head and would have strengthened democracy inside political parties.
Like all other segments of the Pakistani society, Supreme Court also acts in an ad hoc manner taking a short-term view rather than take a more holistic view and considering all articles that have a direct or indirect impact on the verdict.
Abdul Quayyum Khan Kundi