ON balance it’s a good thing that, for the moment at least, the Election Commission of Pakistan will stay intact. The desire for free and fair elections is a legitimate one, but context and timing matter too. The process of appointing this ECP has been one of the most neutral in Pakistan’s history. Whether or not it missed some procedural details, the commission that has resulted has the confidence of most political parties and several constitutional experts. And the country is on the verge of its first democratic transition — would it really have been worth it to rock the boat at this point? All in all, there was simply not a good enough reason to try to take the commission apart right now, and in that sense the Supreme Court’s dismissal of Dr Tahirul Qadri’s petition led to the right outcome.
But the basis of the dismissal has been disappointing. For one, it has discriminated against dual citizens, and in the process also set a dangerous precedent. The only thing Pakistan’s constitution denies dual nationals is the right to run for elected office. One public reaction has been to argue that overseas remittances make up a significant portion of the country’s GDP. But even that is a secondary issue; there is nothing in Pakistani law that says dual nationals, whether or not they contribute to Pakistan’s economy, should not be able to appeal to the judiciary. And the court’s argument on this front — that Dr Qadri’s dual nationality prevents him for running for parliament, and therefore from seeking the particular relief he did — simply doesn’t stand up to logical scrutiny. Second, the court questioned Dr Qadri’s intentions in its verbal remarks, if not in the written order. But while his agenda and timing have been suspicious, that doesn’t amount to a legal argument against him. Third, the court argued his petition did not concern fundamental rights, even though it has set a fairly flexible bar for several other cases to meet that standard over the last few years.
The upshot of all this is that the petition’s dismissal has become controversial, when the preferred outcome would have been to dispose of the petition on stronger grounds, or allow the government and opposition to quickly reappoint the ECP, or handle the case in some other way that would have put to bed any possibility of the ECP’s constitution becoming a roadblock on the way to on-time elections. The hope now is that the more detailed order will clarify some of the questions and concerns the short order has raised.