Pak SC is entirely responsible for the crisis in Pakistan: Justice Katju's article

Amalendu Upadhyaya
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By Justice Markandey Katju

Yesterday, 2nd May,  it was announced that the talks between the ruling PDM and the opposition PTI for agreeing to a fresh date for holding the Punjab Assembly elections in Pakistan have broken down.

I submit that this crisis and imbroglio can be directly attributed to the Pakistan Supreme Court’s failure to do its duty of upholding the Constitution of Pakistan.

On 4th April the Court had fixed 14h May for holding the Punjab Assembly elections. This itself was an unconstitutional order, since Article 224 (2) of the Pakistan Constitution states :

”When the National Assembly or a Provincial Assembly is dissolved, a general election to the Assembly shall be held within a period of ninety days after the dissolution, and the results of the election shall be declared not later than fourteen days after the conclusion of the polls ”.

This provision is very clear, and there are no ifs and buts in it.

The Punjab Assembly had been dissolved on 14th January. So the latest date for holding the Punjab Assembly elections was 14th April. How then could the Court extend the date to 14th May?

Thereafter, when the PDM announced it will oppose elections on 14h May, and refused to release the funds for holding it, as ordered by the Court, the Court surrendered to this blackmail, and asked the parties to discuss with each other and try to agree on a fresh date for holding the elections.

This was an absolutely unconstitutional suggestion. There is no proviso to Article 224(2) which says that if the parties agree, the 90 day deadline for holding the Assembly elections can be extended. But the Court has practically read such a proviso into Article 224(2).

It is a well settled principle of interpretation that courts can neither add words into a provision nor delete anything from it. But the Pakistan Supreme Court has done precisely that.

An application was filed in court by the defence ministry requesting recall of the order of 4th April fixing 14th May for holding the elections, and on this application the court on 19th April summoned the parties, but saying it would not backtrack from its order of 4th April

However, the next day i.e. on 20th April the Court asked the parties to discuss with each and find out whether a consensus could be reached for a fresh date for holding the Punjab elections, at the same time reiterating that it would not backtrack from its earlier order if no consensus was reached.

As already mentioned above, this was an unconstitutional suggestion, since there is no proviso to Article 224(2) permitting the 90 day deadline for holding elections to be extended if the parties agree.

Thereafter Eid intervened, and the case was adjourned to 27th April, then to 28th April, and again to Tuesday, 2nd May. The Court could not have been unaware that the date 14th May which it had fixed for holding the elections was fast approaching, with no signs of any preparation for it. So it was in effect colluding in violating its own order of 4th April, as well as in violating Article 224(2) of the Constitution, while indulging in the sophistry and doublespeak of repeatedly saying it would not backtrack from its order.

Yesterday, it was announced that no consensus between the parties could be reached, and now there is a crisis.

I put the entire blame for this deadlock and impasse on Pakistan”s Supreme Court, and I have said so in no uncertain terms in this interview to Sohrab Barkat, a young Pakistani journalist- “What Nonsense, You are A Court, Show Your Authority – Justice Markandey Katju

The PDM is no doubt to blame for defying the court order, but the greater blame rests squarely on the Supreme Court for buckling under pressure, surrendering to blackmail by the PDM, and developing cold feet when it came to doing its duty to enforce the Constitution.

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