IN stark contrast to the controversies emanating from the general elections in February, the allocation of reserved seats to political parties in the assemblies had always been smooth sailing. However, after the general election, the controversy over the allocation of reserved seats has turned out to be a major bone of contention between parliament and the Supreme Court. The positions held by the two key pillars of state are so diametrically opposite and the adherents of these positions so emotionally charged that there is a serious risk of a showdown that may threaten the current democratic order.

While the Supreme Court had pronounced its majority short order on July 12 and set a clear timetable for its implementation, the progress on implementation has been seriously impeded, in fact, suspended.

The Election Commission of Pakistan sought a written clarification on July 25 from the eight judges about the bona fide leadership of the PTI which could certify the party affiliation of 41 MNAs as the ECP did not recognise the party’s internal election and the resulting office-holders. The Supreme Court order had allowed the ECP to approach the eight judges in the chambers and seek an explanation from them if there was any question about the order. Since some of the eight judges have apparently proceeded on summer vacation after delivering the order, the response to ECP queries supposedly cannot be provided until they resume duty in September and assemble in the chambers to consider the ECP’s questions.

Although the Supreme Court announced its majority short order, it did not give detailed reasons, which could provide the needed interpretation of the Constitution and the laws in support of the order. The three-member committee formed under Supreme Court (Practices and Procedures) Act, 2023, also deferred the hearing of the review petitions. The writing of the detailed reasons and the hearing of the review petitions were both put off because the judges proceeded on summer vacation. Chief Justice Qazi Faez Isa, who heads the committee, disagreed and stressed that the right to review, as provided by the Constitution, should take precedence over the convenience of judges on leave or on vacation.

The Supreme Court should have authored its detailed reasons in the reserved seats case.

Chief Justice Isa also argued that if the review petition was not fixed in the court before the expiry of the stipulated 15 days, as granted by the majority judgement to 41 members who contested the Feb 8 general elections as independent candidates, it would become infructuous.

The PML-N, PPP and many independent legal experts also criticised the majority verdict and the decision to defer the detailed judgement and the hearing of the review petition. In as important a case as the one dealing with the allocation of reserved seats and its grave potential political and legal fallout, the least that can be said is that the Supreme Court should have authored its detailed reasons and disposed of the review petitions before proceeding on summer vacation, even if it entailed rescheduling or cancellation of their vacation.

Despite the fact that the majority short order of the Supreme Court upheld the spirit of the law, many legal minds were of the view that it did not expressly conform to the letter of the law and some constitutional provisions. A kind of legal vacuum was, therefore, created because of the absence of detailed reasons to support the order.

It was in this vacuum that the ruling coalition decided to act through parliament in an apparent bid to neutralise the effect of the Supreme Court short order. A member of the ruling PML-N introduced the Elections (Second Amendment) Act, 2024, in the National Assembly on July 30 and it received presidential assent on Aug 8 after receiving approval in the committee, the National Assembly and the Senate. It is a unique law in the sense that it does not bring in any new legal provision to the statute books; rather, it emphasises existing laws and makes it explicit that these laws will remain valid and applicable in spite of any court order, including that of the Supreme Court. Unless this act of parliament is overturned by the Supreme Court, it remains a valid law and the ECP, apparently, cannot act upon the Supreme Court order of July 12.

In the meantime, on Aug 3, two judges of the Supreme Court, Justice Aminuddin Khan and Justice Naeem Afghan, who had dissented from the majority verdict, issued hard-hitting detailed reasons. Besides stating that “the majority short order does not in any way come within the ambit of the jurisdiction vested in this court or in the Constitution”, it gives the most alarming call to action: “Any order of the court which is not in consonance with the constitutional provisions is not binding upon any other constitutional organ of the state.” Despite the fact that it is a minority opinion which is not implementable, it has provided much-needed ammunition to those contesting the majority short order.

In this highly combustible environment, when the Supreme Court resumes work next month, there are bound to be fireworks. Will the ECP implement the majority short order even if the Supreme Court overturns the Elections (Second Amendment) Act and parliament does not accept the overruling of the law passed by it?

Since denying the reserved seats to PTI, or Sunni Ittehad Council, is expected to result in giving the ruling coalition a two-thirds majority and hence the power to amend the Constitution, and because the government had indicated its intention to amend the Constitution to give a fixed term to the chief justices of Pakistan, the issue of reserved seats has become a game of very high stakes even for some of the judges who may be directly affected by such an amendment. The stresses this game is likely to generate may suck in powers outside the judiciary and parliament and put the democratic order at grave risk.

The writer is the president of Pakistan-based think tank, Pildat.

X: @ABMPildat

Published in Dawn, August 22nd, 2024