Whenever the final chapter is written on these past years of our restored judiciary, the central theme will have to be the apex Court’s insatiable determination to establish a broad sphere of influence throughout the State machinery. While, on the one hand, this instinct has encapsulated epic tales of unearthing mega financial scandals and recovering missing persons, on the other, the story chronicles episodes of judicial overreach that have undermined competing institutions of the State, and eroded popular confidence in the functioning of our democratic framework.
During the PPP years, this deliberate expansion of the court’s dominion into the lawful territory of other institutions (culminating perhaps in matters concerning the workings of NAB, and the challenge to the Eighteenth Constitutional Amendment) was frequently condoned as necessary measures against a defiant government. Post elections, it was hoped that the exercise of judicial power will once again return to the contours of black-letter law, allowing democratic institutions the space and latitude to mature into their constitutional promise.
The brewing saga of Supreme Court’s directions in the Local Government elections, at the heels of the court’s earlier interference in setting the Presidential Election schedule, has dashed all such hopes. For one, owing to the honorable Court’s frequent and unnecessary interference, the Election Commission of Pakistan (ECP) – a Constitutionally independent body, set-up under Article 218 of the Constitution, with a Commissioner and members who enjoy constitutional autonomy and security of tenure – has been reduced to nothing more than a subsidiary of the Court itself. Robbed of its autonomy and independence, over the past many months, the ECP, at every step of the way, has been constrained to seek permissions and directions from the apex Court, in order to discharge its own constitutional obligations.
This ignominious marginalization of the ECP started in July, when the honorable Court decided to reschedule the Presidential Elections, in complete disregard of the fact that the power to set the Presidential Election schedule, per Article 41(3) and Second Schedule of the Constitution, is the exclusive domain of the ECP, and specifically that of the Chief Election Commissioner. Despite hue and cry from opposition parties, the ECP surrendered its autonomy at the altar of judicial verdict, and the Presidential election was conducted as ordered by the Court.
Emboldened by this capitulation of the ECP, subsequently, the honorable Court, after brief consultation with the Provinces, directed the ECP to set the Local Government elections for early December. This again was done while ignoring the ECP’s contentions that the schedule did not allow for the completion of all electoral modalities – the printing of millions of ballot papers, availability of magnetized ink, reconciliation of the electoral lists, and delimitation of constituencies. All attempts by the ECP (as well as by political parties) to get the Court to review its decision, were turned down by the honorable Court.
It is important to note that the ECP and the political parties were not arguing for a cancellation of the Local Government elections, which would be against the mandate of the Constitution. Instead, they were simply praying for an ‘extension’ of the schedule (from December to January). But the apex Court insisted that early December is when the elections must be held. December. And no later.
As the date for submission of the nomination papers approached, the prospect of being able to hold the elections on the schedule prescribed by the Supreme Court became virtually impossible. Just days before the nomination deadline, the honorable Lahore High Court declared that certain provisions of the Punjab Local Government Act, 2013 (relating to non-party based elections) are unconstitutional. Remedial changes, and decision of party candidature now required time. Adding to this, the delimitation of constituencies was challenged in several districts across Pakistan. And in a rare move of political solidarity, the National Assembly passed two resolutions expressing their frustration with the December timeline prescribed by the honorable Court.
Resultantly, the apex Court was faced with two options: 1) extending the election schedule beyond December, or 2) forcing an inherently controversial election, whose flaws will be attributed to an obstinate Court. Consequently, on 13th November, 2013, as a reluctant act of grace, the Court allowed a one-month extension in the schedule for holding Local Government elections.
This convoluted saga, raises a number of questions: once the Provinces had passed the Local Government law, and the ECP had initiated the process of conducting elections, why was the court unwilling to allow a reasonable time to conduct the elections? Should the relevant institutions not be given the requisite time to fulfill their legal and constitutional obligations? Under Article 140A(2) (Local Government), along with Article 218 and 219 of the Constitution (Election Commission), does the ECP not have the exclusive authority to determine election schedules? And if so, does the Court’s overriding interference not undermine the status and credibility of the ECP? Should the empire of our democracy, and separation of powers, not guard against concentration of power in any institution, even if it is the Supreme Court?
And why an insistence that the election be held in early December, as opposed to a few weeks later? Surely delaying the schedule by a few weeks to ensure ‘free and fair’ elections does not violate any Constitutional provision. What then is the obsession with a December timeline? What major transformation – other than a change of guard at the Supreme Court – is contemplated before January? Does the desire to ‘create’ one individual’s legacy (I hold my tongue), form sufficient basis for undermining the Constitutional autonomy and authority of the ECP? In our constitutional paradigm, are institutions not infinitely more important than individuals? And should this idea, of institution building, not be jealously guarded as the very bedrock of our democracy?
Legacy matters. And no institution is more cognizant of this fact than the apex Court. What began, some years ago, as the romantic story of a resurgent Supreme Court, led by Chief Justice Iftikhar Chaudhry, penned in the ink of idealism, has already seen tarnishing turns and controversial curves. As the sun finally sets on the Chaudhry Court, there would be a desire to bow out with one last masterly stroke of popularism. A final curtain-call before hanging the hat. But all such (human) desires must be abstinently resisted in the interest of institution building. It would be incredibly sad to see the project of justice tarnished any further by momentary passions of legacy.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.

saad@post.harvard.edu
 @Ch_SaadRasool