The decision of the Supreme Court on Presidential Elections is being termed as controversial by several political figures, media persons and even lawyers.

Whether the Supreme Court of Pakistan has stepped beyond its authority? The Supreme Court (SC) is being criticized for directing the election commission to hold polls on certain day other than that prescribed by ECP. Many critics say that the order is without jurisdiction as it was the authority of Election Commission of Pakistan to fix date and not of SC.

 

On this argument I wonder, registering a case is the authority of SHO then why a session judge orders him to register a case? Promoting a civil servant is the right of competent superior authority then why does Service Tribunal direct promotion? Arresting an accused is the authority of Police then why does the High Court direct a police officer to arrest someone?

 

Whether in the above cases the court stepped beyond its authority and usurp the powers of the concerned office bearers? Obviously not. Hence, it cannot be said that when Supreme Court directs the ECP to change the dates it was usurping its authority. It is totally misconception rather a misleading remark.

 

Whether Supreme Court has authority to direct ECP? In my view, yes it has. The article 199 of the Constitution says that a High Court may direct any person to do which he is bound by law to do. Same powers are available with the Supreme Court under Article 184(3) of the Constitution of Pakistan.

 

Now the argument is that fixing a date is the right of Election Commissioner. Yes it is. The limits for such fixation are between 60 to 30 days before the expiry of term of the sitting president. EC has discretion to determine any date within that limit. But whether EC should exercise this discretion arbitrarily and may announce any date or it has some higher responsibility to consider the accompanying circumstances. It is well settled by now that discretion needs to be exercised with reasons and not arbitrarily. So when one is fixing a date for elections what should be the foremost consideration of the authority? In my view the foremost consideration would be whether the maximum number of people may be able to exercise their right of vote on the designated day.

 

If such discretion is not exercised keeping in view the above mentioned logical and necessary consideration then the exercise of discretion would be arbitrary. It is again well settled that where there is the case of arbitrary exercise of discretion the courts may intervene; because the concerned authority is bound by law to exercise its discretion logically and judiciously. When it does not do so it is in violation of what it is bound by law to do; in such case under Articles 199 and 184 the courts may direct the authority to exercise the discretion judiciously and not arbitrarily..

 

 Now the question is whether in fixing the date of 27^th Ramadan the EC exercised its discretion arbitrarily? As mentioned above, the foremost consideration should be whether or not the maximum people would have opportunity to vote on the designated day? In the thirty days available with the ECP the last ten days of Ramadan is undisputedly a period in which the lowest number of voters is expected to cast its vote. Hence, the ECP exercised its discretion in contrast to the logic and reasoning and fixed the date in such period as may deprive many voters from voting.

On the other hand such date fixation would also put the voters in difficulty of opting one out of exercise of voting right or performance of religious obligation. One wonders why it was necessary to put the people in difficulty of making such selection? Suppose, if we put this to Islamic Scholars do we anticipate a unanimous answer to the question that whether in such situation the member of electoral college should relinquish vote or Umra and It’ikaaf. I don’t think that there would be any definite opinion of majority.  The result would be another disagreement among the nation. Similarly, if the general elections would be held on 9^th or 10^th of Muharram, when one brothers belonging to one sect are busy, we all would complain that it is the wrong exercise of discretion.

 

Some people make these religious reasons fun of. For a time being, forget that these are the religious obligations. Suppose there is some festival and most of the people are expected to attend that festival and not to vote. Would it be logical to hold elections on that particular day? Obviously, not. Similarly, choosing those ten days out of thirty days in which many of the members of electoral college would be deprived from voting right while the remaining would be unnecessarily put in the trouble of opting one out of two obligations, is a clear case of arbitrary exercise of jurisdiction. Hence, the Supreme Court had all the authority to intervene and direct the authority to fix other date.

 

Another objection is that the judgment is passed without listening to the other party. It is surprising as all the parties to the petition were on notice and were duly represented except the Respondent No.3 who chose not to argue.

 

Another objection is that the other candidates should be made party. The critics mean to say that in the matter of change of date of elections all the candidates should be necessary party without listening to whom judgment cannot be passed. It is a shallow argument. This would means that if a matter pertains to general elections then thousands of candidates should be heard. The principle of necessary party does not mean that. Similarly, if the issue relates to recruitment on certain post then should the court hear all the applicants to that position? Or if the petition is filed against FBR for giving wrong tax concession should all the persons, being in thousands, availing concession be heard? Not at all. This interpretation of necessary party is alien to the world and would put any legal system to dead-lock.  The schedule was to be announced by the Election Commissioner and the Election Commissioner was the only necessary part.

 

Though the other candidates were not necessary parties, however, if they had moved the court for making them party they could be allowed. But they did not opt to do so because they had some ulterior objectives.

 

In view of the above submissions I believe that the Supreme Court has not stepped beyond its authority and has made the right decision. Then why is this criticism?

 

The answer is hidden in who is making the criticism. Foremost, is the Pakistan People’s Party who has personal vendetta against the Chief Justice of Pakistan and who is afraid that Mr. Zardari may not be punished for his deeds after leaving throne. The other name is Ms. Asma Jahangir who always remains ahead in maligning the Chief Justice and upon this decision she had found an opportunity to defame him which is her hobby. Further, her support for PPP is not hidden from any one. Further are the lawyers like Babar Sattar and many PPP supported office bearers of bar, who never remained impartial figures and always been criticizing on Supreme Court.

 

What is the grievance of all these persons? Every person having common sense knows that whether the elections are held on August 6 or July 31, the result would have been the same. PPP and PTI knew that they had lost. They are just taking benefit of this judgment of Supreme Court and want to hide their defeat and to derail the democracy by making elections of President as controversial though they are not.

 

Everybody can sense that Chief Justice of Pakistan is not being criticized for making some wrong decision. But because he has stood against corruption and favoritism. Because he has put the bureaucracy to task. Because he has issued the notices to state inside a state that is ISI. Because he has saved the people of this nation from fraud of those who governs. Because he has taken up the case of missing persons. This is the reason for which Musharraf sent reference against him and arrested him. This is the reason PPP and its allies are unhappy with him and this might be the reason that Nawaz Sharif may become unhappy with him. Another recent reason might be taking up of the case of DHA who again think themselves above the law.

 

All this is being done with malicious intention to deprive the nation of a person who stands by the nation and against power elite.  The programmes in media, the comments of anchorpersons, the projection of anti –CJP people all lead to one inference that there is someone who is initiating movement against the Hon’ble Chief Justice of Pakistan. It might be a cult of business tycoons like Ch. Riaz, ISI officials involved in kidnapping innocent people, Political figures and DHA corporate lords. But  one thing we know that no one has authority except Allah Almighty.

May Allah Bless us with sincere office bearers and May Allah save our good people from conspiracies.