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Tuesday, April 23, 2024  
09 Shawwal 1445  

Justice Jawad Hassan’s semi-colon determines Punjab’s fate

How the Lahore High court ordered the ECP to announce Punjab elections
Artwork: Obair Khan/Aaj News
Artwork: Obair Khan/Aaj News

After weeks of uncertainty, letter exchanges and TV discussions, the Lahore High Court finally put the onus of announcing elections to the Punjab Assembly on the Election Commission in a judgement inspired by the interpretation of a piece of punctuation.

The judgement by Justice Jawad Hassan—that settled the debate and will have far-reaching effects on an entire province’s political future—starts with the interpretation of the seemingly benign semi-colon.

But first, some background.

The dissolution of the Punjab Assembly was advised on January 12 by then Chief Minister Pervaiz Elahi. Governor Baligh ur Rehman had two options: either order the dissolution immediately himself or stand aside, in which case the assembly would stand dissolved two days later anyway. He chose the latter.

Elections for a dissolved assembly are supposed to be held within 90 days, according to Article 224 of Pakistan’s supreme law, the Constitution. But when the Election Commission asked the governor to provide a date, he refused. He added that the commission should ‘consult’ the security forces whether the country’s security levels even permitted an election.

Governor Rehman was called to court to justify his decisions. He simply replied that since he did not dissolve the assembly, he was not the one obliged to provide a date for the next one.

Enter our semi-colon.

The judgement

Justice Jawad Hassan first establishes that the question is not whether elections are necessarily to be held within 90 days. The only question to be settled is who should announce the date for the next elections.

For this, Justice Jawad Hassan writes, there are two eventualities. The eventualities are the same that Governor Rehman faced: dissolve the assembly or let it be dissolved two days later anyway.

The judgement says that in the first case (signing the dissolution into effect) the date of a new election has to be announced by the Governor. But in the second case, (when the assembly dissolves two days later) the law “does not clearly specify” who should announce the date.

And then it appears. Justice Hassan writes:

“On the other hand, careful perusal of Article 112 of the “Constitution” also shows that the said two eventualities are duly separated by the insertion of a semi-colon…”

Full text of Article 112: The Governor shall dissolve the Provincial Assembly if so advised by the Chief Minister ; and the Provincial Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty-eight hours after the Chief Minister has so advised.

The fate of a provincial assembly’s election hangs on the interpretation of what Merriam Webster calls ‘the colon’s quirkier sibling’.

Semi-colons are used to separate thoughts that are complete in themselves with a thought that is connected to them. In this case it connects the two eventualities that occur when a provincial assembly is dissolved.

The judge provides an overview of old court judgements to establish how the ECP is understood to be the guardian of all matters electoral in Pakistan. “The law, therefore, entrusts the Election Commission with exclusive, broad and extensive powers to attend to all issues related directly and ancillary to the election process.”

(We will spare you the names of these cases, we’re nerds about punctuation not legal history, but we have a copy of the judgement.)

But before announcing its final decision, the court takes a small detour.

The Doctrine of Penumbra

The judgement explains that solving this legal problem begins with understanding the powers given to a constitutional body, in this case the Election Commission. And to explain it Justice Jawad Hassan references the doctrine of penumbra.

The word ‘penumbra’ is rooted in the phenomenon of an eclipse. When the planets and stars align a little too perfectly, it creates regions of light and dark. But between the areas of light and dark, is an area of ‘lesser shadow’, a literal grey area.

Rudimentary research (we never claimed to be etymologists) suggests the word first came into legal language in an 1873 article by Oliver Wendell Holmes. It says:

It is better to have a line drawn somewhere in the penumbra between darkness and light, than to remain in uncertainty.

Justice Jawad Hassan uses this doctrine to explain that the context of a law matters. The context of a law regarding a constitutional body forms the underlying values and principles of the Constitution. So if a problem is related to an election and there is no clear answer, the Election Commission should decide what happens and no one else.

And by this reasoning, while it has not been specifically said that the ECP must announce a date in such cases, the Constitution is not uncertain. Instead the Constitution just asks us to find the solution by looking at its overall role and powers.

So the meeting between a semi-colon and the lesser shadow of an eclipse tells us that the Election Commission must get a date for the election. But it also tells us that semi-colons cement relations between ideas. And that just because something is unclear does not necessarily mean it is obscure.

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ECP

Lahore High Court

Elections

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