AT PENPOINT
No case seems more relevant to the present imbroglio about the Punjab and KP Assembly elections than Marbury vs Madison, even though it took place in the USA over two centuries ago. The US Supreme Court invented the principle of judicial review to avoid passing an order that would have been disobeyed. The US Supreme Court, if it followed the law as it stood, would have to rule in favour of Marbury, and thus against the government, in the person of James Madison, then the Secretary of State. Now the government had made it clear that it had no intention of obeying.
The Supreme Court came up with a novel way of rejecting Marbury’s suit. It ruled it did not have jurisdiction because certain clauses of the Judicature Act clashed with the Constitution. For the first time ever, a court ruled as ultra vires of the Constitution, and thus void, sections of a law duly passed by the legislature. Thus judicial review was invented (and incidentally, Marbury’s petition was thrown out. Perhaps more importantly for the future of the Supreme Court, it had passed an order which would not be disobeyed.
The Pakistani Supreme Court has come to its own Marbury moment. Apart from whether the Court will be obeyed or not, the National Assembly has passed the Supreme Court Practice and Procedure Act which restricts the powers of the Chief Justice in taking suo motu notice and constituting benches. Will the Supreme Court abuse the power of judicial review to overturn this law?
It seems a great crisis is already brewed up. The Constitution is clear. If an Assembly is dissolved, elections to a fresh Assembly must take place in 90 days. The PTI at the moment feels it would win big. The PDM parties, while presently seeming to enjoy the sweets office, seem to agree. However, the Constitution does not make any allowance for political imperatives.
The ECP has been known to delay the odd by-election beyond the 90-day limit because of the law and order situation. However, this is the first time it has used this allowance to postpone an entire general election. Its decision also seems to have solved the dilemma of the KP Governor, who was told he had to give an election date, and who gave the same reasons of security in saying that October 8 was fine with him.
There is one option, but that is too destructive for the government to speak of, even I think of, and that is abandoning the Constitution. While remaining within the parameters of the Constitution, there have to be elections. Even the establishment cannot prevent that. The government is trying to buy time, but it can’t do so forever.
October 8 does not fall into a political timeframe, in the sense that anything is expected to happen by then which will make the elections more viable. There is nothing beyond an apparently vague hope that the law and order situation will have improved. There is no reassuring statement that some operation is to be completed, that some target is to be achieved, such as a criminal captured or area swept by security forces, before polls could be held.
There is not even a hidden development the government expects, to make it more confident about going to the hustings. Apart from the law and order situation, the ECP has mentioned the Finance Ministry’s refusal to give it the required money. What happens if the Finance Ministry, when asked to stump up for October 8, says that things have not improved, it is still beholden to the IMF, and still doesn’t have the money? That is likelier than it’s saying it now has money to burn after a miraculous turnaround.
However, October8 does fall into a constitutional timeframe. It would be a normal election date to be set for all four provincial and national assemblies when their term expired. That is a date that the ECP is supposed to set. It seems that the ECP has unveiled its thinking at this stage. It appears that the new date would give the ECP something it has wanted all along: same-day elections.
There is no doubt that same-day elections are advantageous. Not only do they mean that there is a huge saving, with the only extra expense being the printing of ballot papers for two elections, but they prevent the political dislocations consequent upon separating national and provincial elections. However, saving is not supposed to be the objective. In that case, it could be argued that elections should not be held at all, which would be a great saving.
There was a proposal in mid-18th century UK for the abolition of elections. At that time, the life of Parliament was set at seven years, and no government ever lost an election. The ‘outs’ became ‘ins’ only in the Life of Parliament and manoeuvred their way into converting their minority into a minority. At the period, the government never lost elections, and there was no nonsense about their being free and fair.
There was no alternating of parties. The ministry was formed by Whigs, supporters of the King, and the government was formed by dissident Whigs winning the King’s favour. The King was an active player in politics, many because he wanted to keep out the Tories, who supported the Young and then the Old Pretender, an entirely different dynasty.
The Whigs had initially supported the House of Hanover not because they insisted on a Protestant succession, but because it meant they would enjoy the great offices of state. The Tories did not support the Stuarts because they were Legitimists, but because they had been excluded from office. Crossings over were common, as Whigs became Tories in anger at being excluded from office, and Tories became Whigs in return for office. In short, British politics was as venal and self-interested as that seen in Pakistan.
In that era, it was proposed that the Commons be frozen, that the general election be abolished, and only bye-elections held, which were of course much more manageable. In exchange, members of the Commons were not be elevated to the peerage, which carried with it membership of the House of Lords, not just for life, but for one’s descendants as well. There are still almost 100 hereditary peers who hold membership of the Lords.
A member of the Commons famously said, “I might not wish to be a peer, but maybe my son will so hope. I can’t give this up for him.” Such sentiments made the proposal flounder, and the UK stuck with a seven-year tenure.
The Constitution is based on the concept of elections. They cannot be avoided. Pakistan’s history has shown that even when Martial Law was imposed, military dictators had to turn to elections in the end. If they lost the election, as Yahya did in 1970, and Musharraf in 2008, they soldiered on. Yahya accepted the cost of losing half the country, Musharraf created the Patriots from the PPP, and managed to get away with it.
It is difficult to see what objective factors the government sees. The only thing that the government has is the polician’s professional optimism. Like Charles Dickens’ Wilkins Micawber in David Copperfield, politicians believe:” Something will turn up.” It is perhaps apposite that most of Mr Micawber’s troubles were because of a failure to pay his debts. Pakistan is not yet at that stage, which is default, but is not just close, butr in trouble with its lenders. Mian Shahbaz Sharif has taken difficult decisions but has failed to get the loan programme restarted. Now, it seems, only that touching optimism allows the hope of a programme revival.
There is one option, but that is too destructive for the government to speak of, even I think of, and that is abandoning the Constitution. While remaining within the parameters of the Constitution, there have to be elections. Even the establishment cannot prevent that. The government is trying to buy time, but it can’t do so forever.
