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SC’s Response to Level Playing Concerns



Islamabad (Imran Y. CHOUDHRY) :- Former Press Secretary to the President, Former Press Minister to the Embassy of Pakistan to France, Former MD, SRBC Mr. Qamar Bashir analysis :
Witnessing the live streaming of the Supreme Court’s proceedings to ensure a level playing field for all political parties, notably PTI, was an exhilarating and rare opportunity for me and indeed a rewarding experience for the entire nation. The courtroom drama unfolded as a battle of wits, with arguments scoring points and constitutional provisions being quoted. The determined Chief Justice persistently opposed the contempt of court proceedings against the Election Commission, Chief Secretary, and IG Police of Punjab. This was based on the contention that the Election Commission had complied with the Supreme Court’s directives by issuing letters to all provincial election commissioners and the government, emphasizing the need for a fair electoral landscape.

Amidst this intense debate, Mr. Sardar Latif Khosa emerged as a persistent voice, asserting that the Election Commission’s responsibility extended beyond mere letters; it was also tasked with ensuring the actual implementation of the Supreme Court’s directives in both letter and spirit. He argued that the Punjab provincial administration’s disregard for these instructions amounted to a violation of the court’s order, constituting contempt.

Just as Mr. Khosa’s argument seemed to be faltering, an unexpected turn occurred. He drew attention to a paragraph in the Election Commission’s report, revealing widespread allegations of abductions, constraints on PTI candidates and their supporters, and incidents where the RO office was inaccessible due to police cordoning, preventing PTI candidates from filing nomination papers. This revelation inadvertently bolstered Mr. Khosa’s case, providing the Chief Justice with convincing evidence to admit the petition and issue notices to the Punjab advocate general, inspector general, and chief secretary. The Supreme Court sought explanations regarding the alleged lack of a level-playing field in the upcoming general elections.

This pivotal moment led the court to also direct a report from officials concerning the implementation of its order, specifically addressing the party’s concerns. The proceedings were adjourned till January 8, signaling the gravity and importance of the case and its potential implications for ensuring fair and transparent elections.

It goes without saying that a fair and equitable political landscape in nascent democracies like Pakistan necessitates certain critical conditions. This includes equal access to resources, transparent electoral processes, freedom of expression, impartial institutions, and fair media coverage. These conditions foster a democratic environment where all political entities have an equal chance to present their policies, ensuring a level playing field. Such fairness isn’t just a democratic ideal but a necessity for the country’s stability and legitimacy. It encourages trust among citizens in the democratic system, promoting active participation and ensuring that the voices of all segments of society are heard and valued.

The responsibility for creating and maintaining a level playing field is shared among various stakeholders. Government institutions such as the election commission, judiciary, and law enforcement agencies play a pivotal role in ensuring fair elections and opportunities for all parties. Political entities themselves bear the responsibility of upholding democratic principles and advocating for equitable competition. Civil society groups, along with the media, serve as watchdogs, monitoring and highlighting any biases or discrepancies in the electoral process.

The absence of a level playing field during elections reverberates across multiple fronts, amplifying negative repercussions. Political parties suffer from eroded trust and diminished legitimacy, directly impacting their ability to govern effectively and gain public confidence. Societal repercussions include unrest and disenfranchisement, eroding social cohesion. Countrywide, political instability disrupts policymaking and governance, affecting economic stability and deterring both foreign and domestic investment. Businesses grapple with uncertainty, impacting long-term planning and market stability. Internationally, a compromised electoral environment tarnishes a country’s reputation, weakening diplomatic relations and eroding confidence in its commitment to democratic principles. Collectively, these consequences compromise long-term growth, stability, and global standing.

The systematic targeting and imprisonment of a major political party’s leadership severely disrupt the foundational principles of fair competition in elections. Such actions not only impede the functioning of the targeted party but also undermine the democratic ethos of the nation. Similarly, when another political faction faces harassment and violent obstructions to their activities, it exacerbates the lack of fairness and safety in the electoral arena. These instances paint a troubling picture of an imbalanced and unjust political landscape, challenging the very essence of a level playing field in democratic processes.

The pathways for redressal and seeking justice amidst such allegations and injustices are entrenched within established institutional mechanisms. The Election Commission stands as a pivotal entity responsible for overseeing fair elections; thus, parties encountering discrimination or hindrances in the electoral process can formally report grievances to this body. Additionally, judicial avenues serve as vital forums for challenging unjust detentions, harassment, or violations of political rights, providing a means for legal recourse. Human rights commissions, both domestic and international, offer platforms to investigate and address such violations, safeguarding democratic principles.

Yet, navigating these institutional channels might encounter obstacles when institutions themselves face compromise or influence. In such complex scenarios, mobilizing civil society becomes imperative, leveraging public support to advocate for fairness and justice. Engaging with international organizations, leveraging diplomatic channels, and bringing global attention to these violations serve as alternate avenues to spotlight injustices, applying external pressure to restore democratic norms. Effectively addressing these challenges requires a multi-pronged approach, combining institutional redressal with public mobilization and international advocacy to safeguard the integrity of the democratic process.

When a major political party approaches the Supreme Court of Pakistan seeking redressal for a lack of a level playing field, the court encounters certain limitations. Upholding political neutrality while addressing constitutional rights is paramount. However, the court’s jurisdiction might be confined when matters directly fall under the purview of other institutions like the Election Commission or the government’s executive actions. Operating within legal frameworks and past precedents, the court must tread cautiously, ensuring its interventions align with existing laws and constitutional provisions.

The court’s role mandates upholding the rule of law while respecting constitutional boundaries. It should safeguard constitutional rights without overstepping its jurisdiction. While intervening to uphold democratic principles is permissible, the court must refrain from excessive interference with the functioning of other branches of government or independent bodies, unless absolutely necessary.

Many courts around the world were confronted with similar situations. In the United States, the pivotal case of Citizens United v. FEC marked a watershed moment in the U.S. Supreme Court’s rulings on elections. The decision, affirming corporations’ and unions’ rights to unlimited independent political spending under the protection of the First Amendment, reshaped campaign finance regulations.

Within India’s legal landscape, Kuldip Nayar v. Union of India exemplified the Supreme Court’s commitment to fostering free and fair elections. The petition challenged the existing electoral framework, arguing that voters should have the option to reject all candidates contesting in an election if they found none of them suitable or deserving of their vote. The Supreme Court, acknowledging the importance of voters’ rights and the need for electoral reforms, ruled in favor of introducing the NOTA option on ballot papers, allowing voters to express their dissatisfaction with contesting candidates effectively.

Kenya’s Supreme Court made history with its ruling in Raila Odinga v. IEBC & others, where the court nullified presidential election results due to irregularities. This landmark decision emphasized the critical importance of conducting transparent and fair elections, showcasing the judiciary’s intervention to safeguard democratic principles and electoral integrity.

The lack of level playing field will not only mar the result of the elections but also prompt the prolonged litigation in the post election scenario. The aggrieved parties are most likely to approach the Supreme Court to nullify election results due to concrete evidence of rigging will involve various potential outcomes.

The Supreme court is playing a proactive role to ensure that elections are held in a free and fair manner. There are two possible and expected decisions by the supreme court. In one scenario the SC despite compelling arguments from PTI’s legal counsel court may observe procedural limitations in directly attributing contempt. After thorough scrutiny and hearing the responses from the officials, the Supreme Court might issue directives for better implementation of Election Commission orders but refrains from labeling the actions as contempt due to lack of conclusive

In an alternate scenario, the Supreme Court may take a stern stance against the alleged disregard of Election Commission directives by the Punjab administration and police. Despite the administration’s counter-arguments and explanations, the court finds substantial evidence suggesting deliberate actions hindering PTI’s participation, thus constituting contempt. The Chief Justice may express strong displeasure over the reported incidents of hindrance faced by PTI candidates during the electoral process, highlighting the criticality of ensuring a level playing field for all political parties. The court, after careful consideration and thorough examination of the evidence presented, holds the IG Police and Chief Secretary accountable for failing to uphold the Election Commission’s directives. The Supreme Court may reprimand, possibly imposing fines or penalties, and issue stringent directives to ensure strict adherence to Election Commission orders in future elections.

However, the final verdict of the Supreme Court in such scenarios would largely hinge on the evidence presented, the court’s interpretation of contempt in this context, and the extent of the officials’ compliance or disregard for the Election Commission’s directives. It would aim to reinforce the sanctity of fair electoral processes while balancing accountability with procedural considerations.

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