The judgement and after

IT ranks among those inglorious decisions taken by the top court which have been long remembered for breaching democratic norms.

The verdict of the three-member bench led by the chief justice has not only divested a political party of its election symbol, it has, arguably, also taken away the fundamental right of political participation. The controversial ruling depriving the PTI of its iconic bat symbol has seemingly stripped the electoral process of whatever legitimacy it was left with.

There is not even a semblance of fair play as political parties prepare to go to the hustings. The hope for a democratic transition has now been dented further by Saturday’s late-night decision. More importantly, the ruling has come as a disappointment to those who believed that things would change at the top judiciary under the new chief justice, with his reputation for integrity.

Instead, the verdict announced by Chief Justice Qazi Faez Isa, after hearings telecast live, evoked memories of some of the most controversial rulings in the past by the Supreme Court, which had caused irreparable damage to the democratic process in Pakistan.

As Reema Omer, a leading constitutional lawyer, has put it, the “judgement upholding ECP decision to deny PTI election symbol is an excessive, punitive response to not conducting intra-party polls as per law”. It may not be the first time a political party has been deprived of its symbol, but there is no precedent of candidates of a major political party being denied the right to fight elections on a common symbol.

PTI ticket-holders will now have to contest the polls as independent candidates, thus putting a major electoral contender in an extremely disadvantageous position. The decision, just weeks before the polls, is being described by some as part of the political manipulation aimed at keeping the PTI out of the contest. There is hardly any precedent in our chequered political history of such action.

The hope for a democratic transition has been dented further by Saturday’s decision.

By validating the controversial decision of the Election Commission of Pakistan (ECP), the Supreme Court has lent itself to criticism of not being nonpartisan. Nothing could be worse than the judiciary getting sucked into the political maelstrom. The ruling follows the resignation of two senior judges. It has come at a time when divisions within the institution are out in the open, reflecting the deepening crisis within.

There may be nothing wrong with the judges being divided in their opinion, but the open rift could have further impaired the public trust’s in the judiciary. The controversial ruling on the PTI’s symbol seems to have reinforced a growing public perception of the superior judiciary becoming part of the prevailing political polarisation. This view has gained traction, given the overall persecution of the PTI and the evident aim of marginalising the party.

This is certainly not a good omen for a country facing systemic collapse. Continued political instability has made it extremely difficult to deal with our multiple challenges, some of them presenting an existentialist threat. Indeed, one cannot justify the PTI’s own failure to conduct a transparent intra-party election, and there can also be no two views about the importance of intra-party democracy, as pointed out by the chief justice, for democracy to work. But the criteria must not be seen to be applied selectively.

Indeed, it is obligatory for the political parties under the ECP rules to hold intra-party elections and there may be flaws in the way the PTI conducted the mandatory exercise. But it is also a fact that elections within other political parties can hardly be called democratic. In this country, where most political parties have been turned into family enterprises, there is no concept of intra-party democracy. Intra-party elections are just a farce to fulfil a political obligation.

Interestingly, the ECP has never questioned how democratically the elections in other parties are conducted. One glaring example of the double standards being applied on the issue is the case of the Awami National Party. The party has not conducted intra-party elections but the ECP merely imposed a fine and ordered it to hold elections by May 10 this year. The party has not been stripped of its symbol.

But the rules have been applied differently in the PTI’s case, despite the fact that most of its leaders are either behind bars or have been forced to quit the party after being picked up by the intelligence agencies. Arguably the most popular party, the PTI is not even allowed to hold public rallies as part of its election campaign. There have also been several reports of PTI candidates not being allowed to file their nomination papers.

All this raises the question of whether the ECP is fulfilling its constitutional responsibility of conducting a free and fair electoral exercise. The candidates of a particular party are being picked up without being charged to prevent them from campaigning. There is a ring of truth to the allegations that the elections have already been stolen. A partisan caretaker administration appears to be acting for the establishment.

This state of affairs requires the judiciary to play a more active role in protecting the fundamental and democratic rights of the people. Unfortunately, the institution is confronted with its own crisis of credibility that has been accentuated by the latest ruling on the PTI’s electoral symbol case, which has, in effect, disenfranchised a large segment of the population.

The chief justice has remarked on flawed judgements in the past that validated authoritarian rule and on the need to rectify mistakes. But the court’s ruling on Jan 13 does not indicate a departure from the questionable rulings of his predecessors.

With his reputation as an upright judge, it had been a valid expectation that Justice Isa would uphold fundamental democratic rights and restore the credibility of the apex court. Is this reputation at stake? It remains to be seen how history will judge him.

The writer is an author and journalist.