News Analysis: Validation of Minallah-Afridi ‘orders’ by two judges complicates matter

On the face of it, the order of the majority is straightforward. It affirms what was already obvious from the constitution: elections must be held within 90 days of an assembly’s dissolution. To this extent, it validates the earlier judgement of the Lahore High Court.

The Supreme Court was also to determine who is to announce the date of such an election. It holds that when a governor dissolves an assembly, they, themselves, must appoint a date for the next election. And when an assembly is not dissolved by a governor, the president must appoint the date.

And so, in Khyber Pakhtunkhwa, the governor was to announce the date, with his refusal being branded “a breach of his constitutional responsibility”. The president’s announcement of the KP election date is held constitutionally invalid, but he was within his rights to do so for Punjab.

From here, things become more complicated. Even though the SC holds that the president lawfully announced the date in Punjab, it says that sticking to that particular date may not be possible, at present. Therefore, it suggests a do-over. The ECP is now to ‘propose’ a date to the president, and after consulting with the Commission, he is to ‘announce’ the election date.

If necessary, the ECP has been allowed to propose a date “that deviates to the barest minimum” (whatever that might be) from the 90-day deadline. Note, however, that there is nothing to say that the date suggested by the ECP has to be the same date eventually announced by the president.

This is somewhat reminiscent of the Lahore High Court earlier directing the ECP to announce a date for the elections in Punjab. One difference, though, is that the Lahore High Court had directed the ECP to consult with the governor, not the president. A president seeming much more eager to announce elections than the governor is significant. In Punjab, the ECP had more autonomy in choosing the date. However, the Lahore High Court offered no relaxation of the 90-day deadline.

Now, the president can arguably choose to go his own way. This is for two reasons. First, the ECP is to ‘propose’ a date. ‘Proposals’ are ordinarily not understood to be binding. And secondly, if the president does not consider the consultation to be meaningful, his unilateral announcement in Punjab has already been validated. Arguably, now, even if the ECP does attempt meaningful consultation, the president can decide they didn’t. Alternatively, if the proposed date is one that the president does not consider to deviate “to the barest minimum”, he can arguably override it. And all of this is to apply to KP as well, with the exception that the governor is to do all this, instead of the president. The difference, of course, is that the president seems much more keen on early elections than the Governor of KP.

From here, things get really interesting. Claiming that the Supreme Court ‘held’ all of this presumes that it was the decision of the majority. That is to say that: (i) there were only five judges whose orders were to be accounted for; and so (ii) the order of three would be the majority decision of the court, with the rest forming the minority.

However, the order of the minority complicates things. In their separate order, Justices Shah and Mandokhail hold that, with the matter already before the provincial high courts -- and with no “inordinate delay” in the proceedings -- a suo motu erodes the federal structure of the constitution. They go on to dismiss the petitions, while urging the high courts to wrap things up within three working days.

The part that has newsrooms and bar-rooms divided, though, is a footnote that packs a greater per-pixel punch than any in recent memory. As it dismisses the petitions, the minority holds that, before they “dissociated themselves”, Justices Afridi and Minallah “decided the matter by dismissing the petitions”. And they say they did this through “orders” of their own.

The phrasing is, likely, not coincidental. There is, at the very least, a hint that since Justices Afridi and Minallah’s dismissals were through “orders”, they should count towards the total vote. The reference to an “order” would simultaneously exclude Justices Ahsan and Naqvi. The reasoning would be that, though originally on the bench, they arguably did not pass an order of such a nature.

If one is to accept all this, the strength of the bench would be seven, not five. And with two more in agreement, the minority of two in the 3-2 bench would become a 4-3 majority. But the calculus is more complicated. For one, while recusals from a bench are common enough, it is unclear what it means to ‘dissociate’ from a case. It is also unclear whether Justice Afridi intended for his ‘dismissal’ to be counted. And even if this were so, it is unclear to what extent Justice Minallah, in turn, agreed with him.

Attempting to formally determine the majority decision is of little use. If a review were to be filed, it would be fixed before the same bench. This would create a deliciously absurd situation where the question before ‘the same bench’ would be what the ‘same bench’ was. And, aside from a review, courts only interpret an earlier judgement on their own initiative. Deciding who would be on that bench is more complicated, still. Ultimately, it’s hard to see a situation where the 3-2 split doesn’t hold.

However, in the excitement of all the fine-print, it’s important not to lose sight of the bigger picture. Even if the actual decision were 4-3, what would that really change? The Lahore High Court has independently directed the ECP to announce a date within ninety days. And, given the plain language of the constitution, it’s hard to see how the Peshawar High Court won’t soon announce something similar.

In the end, however you interpret the decision, one thing is plain. You can try to escape elections, but there’s nothing in the law to help you.

The writer is a lawyer. He tweets @brainmasalaar and can be reached at: salaar.khan@columbia.edu