Judicial verdict

ByShahmir Kazi

works in the private sector with interest in socio-political affairs


March 5, 2023

Judicial verdict

Shahmeer Kazi discusses a judicial verdict

It is widely acknowledged that post-dictatorial governance systems often rely upon Judicial verdict intercession as their political capacity is rendered untenable by arbitrary rule. It is therefore quite obvious that the judicial organ of the state is considered very potent in Pakistan as is borne out by the frequency of political litigation that is referred towards it.

The excessive reliance on judicial intercession has given rise to judicial activism that has made national matters more cumbersome. The judicial mindset also has been affected by the reliance shown by democratic political operatives with the result that the judiciary, more often than not, indulges in taking initiatives in such matters further complicating them.

It is a very divisive area of national activity but the judicial mindset pays little heed to the consequences of the initiatives it resorts to though the record of judicial activism is, at best, mixed. In fact, too many observers, self-motivated activism has caused quite a good degree of harm to the national cause but this is something that the judicial organ conveniently ignores.

Now, the matters have reached a stage where the muffled critical voices about it are growing louder by the day. This time round the judiciary faced a serious backlash from a section of political elements and their opposition also gained traction in the media. The news of serious disagreements within the ranks of the apex court was also widely commented upon as these differences have shown no signs of resolution.

The recent judicial verdict was given after a Suo moto notice taken by the Supreme Court (SC) regarding the issue of holding elections in 90 days in Punjab and KP as both are now under caretaker governments after their assemblies were dissolved in January.

KP Assembly And Government

The majority verdict was 3-2 with two judges dissenting. SC held that in situations where a governor dissolved a provincial assembly, the constitutional responsibility of appointing a date for the election was to be discharged by the governor. It stated that since elections after the dissolution of a provincial assembly were to be held within a stipulated period of time, the president or the governor must discharge the constitutional responsibility of appointing a date for the said election swiftly and without any delay and within the shortest time possible.

It went on to say that regarding the dissolution of the Punjab Assembly, the constitutional responsibility for appointing a date for the general election was to be discharged by the president as the governor had refused to sign on the assembly dissolution summary. But regarding the dissolution of the KP Assembly, the verdict continued, and the constitutional responsibility for appointing a date for elections was to be discharged by the governor.

The verdict added that the order of the president dated 20 February is constitutionally competent and it applies to the Punjab Assembly but the same is constitutionally invalid insofar as it applies to the KP Assembly and is therefore hereby set aside. The order highlighted that the governor of KP, in as much as he has not appointed a date for the holding of the general election to the assembly of that province is in breach of his constitutional responsibility.

It further said that in ordinary circumstances, the general election in Punjab ought to be held on 9 April— the date given by the president — but because there were delays in the announcement of the poll date, it might not be possible for the province to meet the 90-day deadline.

Election Commission And Constitution

The Election Commission is therefore directed to use its utmost efforts to immediately propose, keeping in mind sections 57 and 58 of the 2017 Act, a date to the president that is compliant with the deadline. After consultation with the ECP, the President shall announce a date for holding the general election to the Punjab Assembly. If such a course is not available, then the Election Commission shall in like manner propose a date for the holding of the poll that deviates to the barest minimum from the aforesaid deadline.

Meanwhile, the SC directed the KP governor to appoint a date for elections in the province after consulting the ECP. The top court also instructed the federal government to ensure that the government of every province is carried on in accordance with the provisions of the Constitution. The case in reference has brought to the fore yet again the complexities of Judicial verdict activism that bring in its wake the perils of uncertainty and also breed instability.

In this instance, the extremely negative angle is added to judicial activism as the disputes between judges are now regularly aired in public and their primary cause is the gradually growing contention over the powers of the Chief Justice (CJ) to constitute benches for hearing cases. The discretionary power of the CJ has given rise to frequent applications for the constitution of the full court but they are regularly denied.

The situation has been further complicated by the introduction of legal interpretations of uncertain provenance by smaller benches that result in diminishing the authority of the apex court. It is also noted that matters are now decided by short orders with their detailed reasons withheld for a considerably long time and such delay lends credence to the deepening perception.

Long-Lasting Judicial Verdict

Many observers tend to point out that political issues could only be resolved through broad consensus and attaining it is far more than the mandate of judiciary. It could only be attained through political action and once obtained it is usually longer-lasting. This process is the generally acceptable governance principle and any attempt to get political issues resolved through judicial rulings is not only restrictive but also is self-defeating.

It should also be kept in view that populist issues cannot be closed in a box by judicial writ as their tentacles have the tendency to spread far and wide. While it is conceded that public controversies are unavoidable yet they cannot be sorted out by courts and this point has been repeatedly proved right.

It has become more than clear during the recent past that the courts achieve little when they try to start adjudicating political matters by applying legal principles that surely do not prove correct or effective in the public arena. By sticking to the notion of judicial activism the courts may become equal players in governance sector but for a short while as such negation of their appropriate role works to their detriment in the long run as is borne out by the contentious judicial history of the country.

A prudent judiciary is conscious of its strengths as well as its shortcomings and is fully aware of the pitfalls of overreaching its functional intentions. It should also stay conscious that by showing restraint the Judicial verdict authority is strengthened and any outreach does have the potential of disrupting the aura of transparency that actually is its most potent weapon. Therefore, in the fitness of things, the superior judiciary shows utmost restraint in pursuing its course of action. The Weekender


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