In the medieval ages when the concepts of democracy, sovereignty of people and government of the people, by the people, for the people were alien to the world, the Kings who ruled the states were laws unto themselves. There were no constitutions to regulate their powers. Law was what the Kings would pronounce while adjudicating on issues before them and there was absolutely no check on their indiscretions.
However with the advent of the modern era, the emergence of nation states and acceptance of people’s right to choose their own rulers, the states started adopting constitutions that reflected the will of the people as sovereigns. These constitutions invariably delineated an arrangement for distribution of powers between the pillars of the state known as the trichotomy of powers. The parliament was recognized as the mother of all state institutions which were created through the constitutions adopted by it.
Parliament enacts laws in conformity with the Constitution to run the affairs of the state, the executive in the form of the government formed on the basis of winning franchise of the people is mainly responsible for ameliorating the lot of the people and strengthening the edifice of the state, the judiciary plays the role of custodian of the constitution and protector of fundamental rights of the people as enshrined in it besides making sure that all state organizations including the government strictly follow the constitution and the laws enacted by Parliament. While playing its designated role the judiciary and the judges as its members are also under obligation to give their verdicts while remaining within the ambit of the Constitution and the laws enacted by Parliament.
The judiciary is the most sanctified institution of the state and its judges are therefore the most respectable individuals. That respect however does not come automatically. The judges earn that respect through the verdicts that are given in conformity with the Constitution and law, rising above their personal prejudices. The verdicts given by the judges have their implications for the society and the state in case they in any way vitiate the constitution or do not conform to the law enacted by the parliament.
They have also pitched the Judiciary against the Parliament as well as the Executive which can have disastrous consequences for the country. They must remember that they derive their authority and powers from the constitution and cannot impose their own wills in their verdicts like monarchs, setting aside its dictates
Unfortunately our judicial history is replete with verdicts that are, to a great extent, responsible for the nation groping in the dark to find its direction even more than 75 years after its independence. I will not go into details of all those verdicts and would restrict myself only to the recent indiscretions committed by the judges of the apex court in violation of the constitution and law of the country which have further precipitated the already existing political crisis in the country.
Take for example the opinion given by the Supreme Court on a presidential reference in regards to Article 63A, the details of which are well known to the public and all the stakeholders. The Supreme Court re-wrote the Article notwithstanding the fact that it does have the powers even to change a comma in the text of the Constitution. The judges are not the legislators. They are only supposed to interpret the Constitution and law saying what it means and telling what it should be. So in its opinion on the Article the SC went beyond the domain of its constitutional powers.
This unconstitutional opinion of the apex court triggered a political crisis of humongous proportions particularly in Punjab. The Supreme Court also been in the midst of controversy over its decisions rendered in the backdrop of the dissolution of provincial assemblies of KPK and Punjab, as is evident from the debate on whether the decision regarding taking suo motu notice in regards to elections in Punjab was rejected by 4-3 majority or endorsed by 3-2 majority.
I am afraid that the Supreme Court judges, while saying that ECP had no power to change the date of election in Punjab and its decision was unconstitutional, itself has no constitutional or legal validity. Let us examine how. The Election Act 2017, which is an enactment of Parliament, bestows the responsibility of conducting general elections in the country in a free, fair and transparent manner on the ECP. Article 224(2) requires the ECP to hold elections within 90 days after the date on which an assembly or assemblies are dissolved. However in case the ECP in view of the existing circumstances and ground realities feels that it cannot fulfill its obligation to hold election within the stipulated period, it can change the date of election as per section 58 of the Election Act 2017 which says “ Notwithstanding anything contained in section 57, the Commission may, at any time after the issue of the notification under sub-section (1) of that section, make such alterations in the Election Programme announced in that notification for the different stages of the election or may issue a fresh Election Programme as may, in its opinion to be recorded in writing, be necessary for the purposes of this Act.”
The decision to postpone the election by the ECP under this section which is an enactment of the Parliament also enjoys the protection of Article 254 of the Constitution which reiterates “When any act or thing is required by the constitution to be done within a particular period and it is not done within that period, the doing of the act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period.”
As is evident, the contention of the Supreme Court judges that the action taken by the ECP was unconstitutional as it did not have power to change the date of election is absolutely wrong. While ordering the ECP to hold elections on May 14 and also giving the schedule of elections, the Supreme Court has also usurped the powers of the ECP given to it under the Election Act 2017. The order of the Supreme Court to the State Bank to release Rs 21 billion to the ECP for elections in Punjab and KPK is also against the law. The judges by delivering the above cited verdicts have acted like kings. By committing these indiscretions they have nudged the country back to the medieval ages.
They have also pitched the Judiciary against the Parliament as well as the Executive which can have disastrous consequences for the country. They must remember that they derive their authority and powers from the constitution and cannot impose their own wills in their verdicts like monarchs, setting aside its dictates.
