Law students and law graduates in Pakistan are reporting for JURIST on events in that country impacting its legal system. Abu Bakar Khan is a final year law student at University Law College, University of the Punjab. Noor Ul Huda is also a final year law student at University Law College, University of the Punjab. They file this dispatch from Lahore. 

Recent developments in Pakistan’s upper house (Senate) have spurred a wave of uncertainty about the general elections scheduled for February 8, 2024. Last Friday, January 5, an independent parliamentarian, Dilawar Khan, presented a resolution in the Senate against elections that was passed by 14 members. The next day a counter-resolution was submitted by Jamaat-e-Islami party Senator Mushtaq Ahmed Khan in favour of elections. This debate has proven to be grist for the mill of the news industry, echoing in Court Room no 1 of Pakistan’s apex court. This political football has further put the entire nation in a quandary over how their fundamental rights be protected or how they will they be redressed, given the continuous delay (despite Supreme Court orders) in elections following the premature dissolution of the Punjab and KPK provincial Assemblies on 14th and 18th January 2023 respectively, followed by the dissolution of the National Assembly on 9th August 2023.

The year 2023 will be remembered as a year of constitutional crisis in Pakistan’s history. The chronological order of this cataclysm begins with the violation of Article 224(2) which mandates holding elections within 90 days of dissolution of assemblies. After a two-week-long reluctance shown by the Election Commission of Pakistan (ECP) to announce dates of election in Punjab and KPK, the Lahore High Court ordered the Election Commission of Pakistan (ECP) to announce a date of elections on 10th Feb 2023. This was countered by Pakistan’s President announcing  April 9 to be the day of elections. The Supreme Court, in March 2023, while deciding that due to a delay in the announcement of a date, it was not feasible to conduct elections on 9th April, ordered the ECP to propose another date. The President, after suggestions from ECP, then announced  30th April as the Election Day. This time again the constitution was breached and the sanctity of the Supreme Court was violated by the ECP. The SC itself decided on 14th May 2023 for the elections in Punjab while concluding a constitutional petition. 14th May was further delayed to October 8, 2023 on the pretext of delimitation, which was then further extended to Feb 8, 2024 by the consultation of ECP with President Alvi by the intervention of the Supreme Court. Now again there are clouds of uncertainty hovering over democracy in Pakistan.

In the recent case of Supreme Court Bar Association of Pakistan v Federation of Pakistan, the Supreme Court has supposedly resolved the matter of elections by fixing February 8, 2024 as the day of polls, but discussions in Islamabad are indicating that this date is uncertain. The most remarkable aspect of this judgment is the Additional Note of Justice Athar Minallah, who expressed the importance of elections by stating, “The State cannot be governed in the absence of the chosen representatives for more than the ninety days expressly provided for holding the general elections followed by election of a leader of the House.”   Justice Minallah apparently considers any delay, even of a single day, in holding the general elections beyond the expressly provided time frame, i.e. ninety days, as a grave violation of the Constitution and denial of people’s constitutional rights.

Justice Minallah also stated that the enjoyment of all other rights expressly guaranteed under the constitution is subject to and dependent on the foundational political right to participate in the governance of the State and exercise the powers and authority through chosen representatives. The legal rights of the people of Pakistan, especially the 125,626,390 registered voters, have been gravely violated he said, so has been the Constitutional command. He held the Government, the President, Governors and the Election Commission of Pakistan at fault, stating “Their egregious public wrongdoings and reckless disregard to the duties imposed upon them under the Constitution were the cause for the loss or injury suffered by the people of Pakistan, deprivation of their constitutional rights.”

In his Note, Justice Minallah placed the present defiance of the Constitution in the context of the country’s past, recalling the past defiance of the constitution and all those involved and complicit, including the Constitutional Courts and Judges who validated the acts of the usurpers of the Constitution. He stated that there is a continuous violation of the constitution throughout Pakistan’s history because the usurpers were never charged with high treason, nor were their collaborators made accountable.  His note clearly rejects the nonsense pretexts of lack of funds and security concerns for delaying the elections. He urged the accountability of all those who obstructed elections within 90 days after the dissolution of the KPK and Punjab Assemblies in January and the National Assembly in August 2023. He said that the people of Pakistan are being governed by unelected caretakers in violation of the Constitution and their fundamental rights. Referring to the Government, President, Governors and the Election Commission, he wrote “They are all in breach of their statutory duties. Their conduct and failure to discharge their constitutional duties has made them answerable to the people. They have exposed themselves to actions against their tortuous acts.” He urged the people to exercise their right to claim remedies for the tortuous acts and thus vindicate their rights and set an example for creating deterrence for the future, asserting that it is a duty of the courts to put an end to impunity against the violation of the Constitution and constitutional rights. He imposed a duty on the courts to ensure that “if citizens file claims for alleged tortuous acts of public authorities they are decided expeditiously and in accordance with the law.”

In light of all this, the successful implementation of these crucial directives remains to be seen.  It must however be said that economic stability largely hinges on political certainty. No government can make tough, unpopular decisions and implement reforms in uncertain political settings. It is crucial to prioritize the restoration of constitutional order in Pakistan and ensure accountability promptly. This commitment is not only integral for safeguarding citizens’ rights but also forms the cornerstone of a resilient and thriving democratic future.