Big Ban Theory

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The Supreme Court, seemingly after adopting judgments of the ECP and Peshawar High Court, has simultan-eously set them aside, how?

2024-07-24T05:43:39+05:00 Sardar Fida Hussain

Reserved seats’ case was indeed one of the most fiercely argued cases in our Supreme Court’s recent his­tory, more so by honorable judges of the bench than lawyers. The bench was clearly divided be­tween two distinct ap­proaches, constitution­al justice by restricting the court’s scope within the written text of the con­stitution while the other group adopted the causational justice approach, proclaimed as com­plete justice under Article 187 of the constitution.

Article 187 as recorded in the constitution states; “Article 187 grants the Supreme Court the authority to issue directions, or­ders, or decrees deemed neces­sary for achieving complete jus­tice in any case before it. This expansive power highlights the Court’s pivotal role in ensuring fairness and equity”.

For one, let us ignore the plethora of constitutional/legal flaws, deviations, and violations pointed out by some of the most revered names in our legal fra­ternity with respect to reserved seats’ judgment. Let us also de­lete the entire constitution and assume Article 187 as the whole to analyze if the said judgment even reflects complete adher­ence to Article 187.

Honorable Justice Ather Minal­lah, while addressing advocate Salman Raja during the last day’s proceedings of the case, remarked twice “You are shy of telling the complete truth, you are shy of tell­ing complete truth”. Let me tell the complete truth, Justice Ather then proclaimed, “What happened to PMLN during the elections of 2018 has happened to PTI in the elections of 2024”. If we accept his lordship’s remark as the complete truth, then it becomes natural to expect that complete justice shall be in complete compliance with the complete truth.

In view of his lordship’s own remarks, putting all constitution­al guidelines aside, even if we ac­cept reserved seats’ judgment as justice based on the princi­ple of “fairness” it still falls short on the principle of “equity” as provided in article 187, copied above. It is evident that the judg­ment has failed to equate “jus­tice of fairness” delivered to PTI for the 2024 elections and de­nied to PMLN for the elections of 2018. The judgment is also gross­ly incomplete in view of the com­plete truth as proclaimed by an honorable judge. Hence, the re­served seats’ judgment neither conforms to Article 187 in entire­ty nor does the judgment qualify as complete justice in spirit.

Another paradox of this judg­ment, constructed under the pre­text of complete justice, is setting aside judgments of the election commission of Pakistan and the five members’ larger bench of the Peshawar High Court. While both forums had refused to recognize the claim of “Sunni Ittehad Coun­cil” with respect to “Reserved seats”, the Supreme Court’s judg­ment also denies the entitlement of “Sunni Ittehad Council” for the reserved seats. The Supreme Court, seemingly after adopting judgments of the ECP and Pesha­war High Court, has simultane­ously set them aside, how? Only detailed judgment can delineate. Explanation of the legal quag­mire created by this judgment is best left to the constitutional experts. Let us contemplate the possible political consequenc­es of this decision as the subse­quent aftermath of the judgment.

While PMLN and PPP have clearly communicated their re­spective displeasure in response to this judgment, both parties ap­pear to be dissenting on the future course of actions, after PMLN’s announcements made with re­spect to banning PTI as a political party and initiating a high treason case against Imran Khan, Arif Alvi and Qasim Suri under article-6 of the constitution. Media reports suggest that PPP’s reluctance is cosmetic, as PPP will soon board the ship and sail along PMLN.

The government’s announce­ment to ban PTI as a political par­ty has given birth to yet another political controversy. Many se­nior politicians from across dif­ferent parties have stated, that banning a political party is an un­democratic act. While respecting the opinions of these senior po­litical leaders, I consider these expressions as ostentatious fash­ion-compliant statements.

For objective analysis, if ban­ning a political party is indeed undemocratic. My two questions for those issuing democratical­ly fashionable statements as self-proclaimed true proponents of democracy would be, is the con­stitution of Pakistan a democrat­ic document? is the provision of banning a political party included in the constitution? The answer to both questions is an unambigu­ous yes. Knowing these facts, how can any democratic mind pro­nounce the idea of banning a po­litical party as undemocratic? To me, the idea of banning a politi­cal party is both constitutional as well as democratic, while remain­ing obedient to the constitution.

However, an important and a must raise question should be, does PTI qualify to be banned as per the criterion laid down in the constitution and laws of Paki­stan? If the answer after due pro­cess is “Yes”, then a ban on PTI would be constitutional as well as democratic, and if the answer is “No” then the imposition of a ban on PTI would not only be uncon­stitutional and undemocratic, but also criminal. We as a nation must acknowledge the fact that our only way out of persistent chaos and mayhem is through the con­stitution and constitution only.

We must also recognize that the government is not the decid­ing authority to ban a political party in Pakistan. The govern­ment can only recommend the imposition of a ban on a politi­cal party to the Supreme Court. The government is then required to substantiate its recommen­dation with irrefutable evidence and convince the Supreme Court, beyond doubt, to earn a verdict in favor of its recommendation of banning a political party.

Henceforth, in my opinion, whether the government succeeds in earning a verdict of the Su­preme Court in favor of its recom­mendation, or the Supreme Court turns down the government’s rec­ommendation as unsubstantiated and frivolous, in both cases, it will be a victory for the constitution, and democracy, in Pakistan.

Sardar Fida Hussain
The writer is the former Secretary General of Tehreek Suba Hazara.

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