Wednesday, the Supreme Court (SC) ruled in a 3-2 decision that elections must be held within 90 days in Khyber Pakhtunkhwa and Punjab, both of which have been under caretaker governments since the provincial assemblies were dissolved in January.
“Parliamentary democracy is a defining characteristic of the Constitution. The ruling stated that there cannot be a parliamentary democracy without the Parliament or provincial assemblies. “Neither Parliament nor provincial councils can exist without general elections.”
The majority verdict, rendered by Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Munib Akhtar. And Justice Muhammad Ali Mazhar, was announced today by Pakistan’s highest court.
Justices Jamal Khan Mandokhail and Syed Mansoor Ali Shah, two of the four judges who added additional notes to the February 23 order, dissented from the decision.
In the written verdict, the apex court ruled that in cases where a governor dissolved a provincial assembly. It was the governor’s constitutional responsibility to set the election date.
“In cases where the assembly is not dissolved by the governor. It is the president’s constitutional duty to set a date for the subsequent general election,” the Constitution states.
Elections after the dissolution of a provincial assembly
Since elections after the dissolution of a provincial assembly were to be held within a specified period, the court ruled that the president or the governor “must discharge the constitutional responsibility of appointing a date for the said election without delay and within the shortest time possible.”
“The Election Commission must proactively be available to the president or the governor and be prepared to consult with them as needed regarding a date for holding general elections,” the order stated.
As the governor had refused to sign the summary of the dissolution of the Punjab Assembly, the document stated that the constitutional responsibility for setting a date for the general election was to be carried out by the president.
Regarding the dissolution of the KP Assembly. However, the verdict stated that the governor was constitutionally responsible for setting the election date.
“Furthermore, it follows that the president’s order dated February 20 is constitutionally valid and applies to the Punjab Assembly. But is unconstitutional insofar as it applies to the KP Assembly and is hereby set aside.
“It also follows that the governor of KP is in breach of his constitutional duty in that he has not set a date for the holding of general elections to the assembly of that province,” the order stated.
In normal circumstances, the general election in Punjab would be held on April 9 — the date specified by the president. But because of delays in announcing the election date. It may not be possible for the province to meet the 90-day deadline.
Sections 57 and 58 of the 2017 Act
“The Election Commission is therefore directed to make every effort to immediately propose to the president a date that complies with the deadline, bearing in mind sections 57 and 58 of the 2017 Act. The President shall announce a date for general elections to the Punjab Assembly after consulting with the ECP.
“If such a course is unavailable, the Election Commission shall propose a date for the election that deviates as little as possible from the aforementioned deadline,” the order stated.
In the meantime, the Supreme Court ordered the KP governor to set a date for provincial elections after consulting with the ECP.
The highest court ordered the federal government to “ensure that each province is ruled by the Constitution.”
“The federal government is obligated, among other things, to immediately provide the Election Commission with all facilities, personnel, and security necessary for the conduct of general elections,” it stated.
Ultimately, the court ruled on the case.
Before today’s verdict, the courtroom where the much-anticipated decision would be announced. Room No. 1 — was packed with journalists and attorneys. Shireen Mazari, Fawad Chaudhry, and Sheikh Rashid, the leader of the Awami Muslim League, were also present.
Notes of dissent by Justices Shah and Mandokhail
Justices Shah and Mandokhail stated that the CJP’s suo moto proceedings were “entirely unjustified” and initiated with “undue precipitation.”
The note stated that the suo moto proceedings “do not constitute a fit case to exercise the extraordinary original jurisdiction of this court under Article 184(3) of the Constitution and are thus not maintainable as the same constitutional and legal issues seeking the same relief are pending and being deliberated upon by the respective provincial high courts in Lahore and Peshawar, without an inordinate delay in the conduct of the proceedings before them.”
“There is no justification to invoke our extraordinary jurisdiction under Article 184(3) to initiate suo motu proceedings or entertain petitions under Article 184(3) of the Constitution, as a single Bench of the Lahore High Court has already decided the matter in favor of the petitioner in a judgment dated February 10, 2023, which is still in force.
“The intra-court appeals (ICAs) filed against the said judgment are pending before the Division Bench of the Lahore High Court”
In their note, the judges explained that when a constitutional issue was pending before a high court. It should not be interfered with but rather supported to strengthen the autonomy of provincial courts.
They also maintained that there was no “inordinate delay in the proceedings pending before the high courts.” As the CJP stated in earlier hearings, the Supreme Court’s current proceedings had delayed the matter before the high court.
However, given the gravity of the matter, we anticipate that the respective high courts will rule on the pending cases within three business days of today,” the note stated.
“We, therefore, concur with the orders issued on February 23 by our learned brothers Yahya Afridi and Athar Minallah, dismiss the current constitution petitions, and withdraw the suo moto proceedings,” the dissenting note stated.
“Constructive and positive decision”
Barrister Asad Rahim, speaking on DawnNewsTV, described the verdict as “positive and constructive.”
He stated that the supreme court had paved the way for Pakistan to emerge from a “constitutional crisis.”
According to the expert, the confusion regarding the Punjab governor’s refusal to announce an election date. Because he had not approved the dissolution of the provincial assembly had also been resolved. “The Supreme Court has addressed this void.”
Regarding the president’s powers, Barrister Rahim stated, “The distinction is that the court is discussing Article 57 of the 2017 Election Act, which falls under the Constitution.”
“In light of the supreme court’s ruling, when there is such a stalemate, the president can exercise this authority,” he added.
The legal expert added that the court had still accorded the KP governor’s position “central priority,” meaning that the governor is “the first authority to announce the election date.”
He continued by stating that while the Punjab governor had not approved the dissolution of the assembly, the situation in KP was different. So it was “declared that they [the KP governor] had violated the Constitution.”
In response to a question about the possibility of another constitutional crisis, the legal expert opined that a similar circumstance should not occur again.
He stated that the ECP refrained from pursuing its “fundamental objective of holding independent and fair elections” and “did not move forward despite the Lahore High Court’s verdict to organize the elections.”
Barrister Rahim said the ECP’s prior justifications about law and order and the financial crisis were “baseless.”
SC reserves verdict
After a full day of hearings on Tuesday, the court adjourned at 5:15 p.m. for a brief order but decided to postpone the verdict until today.
The court also asked political parties to consult their leaderships during a brief break and return with a consensus date for the elections. However, PML-N counsel Mansoor Usman Awan informed the court that consultation will take longer because the PDM coalition has members in Balochistan and the PML-N will have to hold internal discussions in addition to consulting with the PPP.
Shehzad Ata Elahi, the attorney general for Pakistan, argued that the ECP had the authority to set the election date. If the committee found any election issues, it should report them. Justice Munib Akhtar remarked that it appeared the ECP was unaware of its constitutional duty to set the election date. However, they are now aware of its constitutional duty.
The CJP pointed to senior counsel Farooq H. Naek
He was representing the PPP, and stated that nobody was questioning the legitimacy of the government due to reasons such as terrorism or economic conditions, which the country was facing for the first time, but that “we should at least decide which authority will announce the date for conducting elections in the provinces of Punjab and Khyber Pakhtunkhwa (KP)”.
The CJP emphasized that Article 254, which legalizes any failure to comply with certain requirements within a specified time frame, does not permit anyone to avoid the constitutional requirement of holding elections within 90 days, as elections must be held even in the event of war or other catastrophes.
The CJP observed that if the law is silent, neither the executive authority nor parliament nor any constitutional body has the authority to exceed the 90-day time limit for holding elections, except the court. However, the court would have to be satisfied with the overriding obstacles to conducting free and fair elections.
Naek argued that the PPP did not want the elections to be postponed unnecessarily.
But rather wanted to participate in the polls if they were held by the law and under favorable conditions. He added, however, that the current economic crisis makes this a difficult possibility.
He stated that the April 9 election date set by President Arif Alvi without consulting the prime minister was invalid under the law and that the president’s discretion was implicit in the constitution.
Concerning the suo moto proceedings under Article 184(3), the attorney recalled that a similar case was pending before the Lahore High Court (LHC), which had ordered the Punjab governor to announce the date in consultation with the ECP.
In KP, the governor has the authority to announce the election date. But in Punjab, the statute is silent, so the ECP must announce the date, according to Naek. He added that it was not the responsibility of the political parties to set the election date.
Justice Shah requests that parties “develop consensus.”
During Tuesday’s hearing, Justice Syed Mansoor Ali Shah stated that a resolution will be reached if Pakistan’s interests are prioritized. He requested that the parties convene to reach a consensus.
PTI leader Fawad Chaudhry argued before the court that the issue should not be given to the executive. Because it would spiral out of control if the 90-day deadline was not adhered to.
The CJP lamented that the Peshawar High Court (PHC) took three weeks to notify respondents. While the Lahore High Court (LHC) held two hearings and adjourned the case.
In contrast, the supreme court began regular proceedings on Monday and will announce its decision today. He emphasized, “We have accommodated this case because it involves the enforcement of the Constitution.” Farooq Naek argued that the supreme court should have ordered the lower courts to resolve the case swiftly.
When Justice Bandial stated that the court rarely initiates cases of its own volition. The attorney remarked that the judicial activism that began in 2007 was now being replaced by judicial restraint. Justice Mandokhail remarked, “Even though the assembly was dissolved on January 14, nobody seems concerned.”
Salman Akram Raja, the president’s attorney, said the president acknowledges he had no part in setting KP’s date. The president is very concerned about his constitutional role, and all he has done is adhere to the Constitution’s spirit. But he is being attacked in the media for allegedly violating Article 6 (treason), lamented the president’s counsel.
He added that even the cabinet had written to the president saying he had broken Article 2 of the Constitution. The attorney stated that the president had awaited the high court’s decision and even invited the ECP. However, when the commission refused to participate, the president consulted with his advisors. He advised him to fulfill his constitutional responsibilities. The 90-day limit must be taken seriously, argued the attorney.
Justice Mazhar pondered if the president would wait two years if the prime minister did not suggest an election date.
The Chief Justice stated in his order that a constitutionally significant issue was unclear.
The Supreme Court must immediately consider and resolve the issues raised. The decision was made after a note was presented to the CJP in response to an order issued by a two-judge bench on February 16 requesting the chief justice to take a suo moto initiative in this matter.
“Several provisions of the Constitution and pertinent sections of the Elections Act 2017 must be considered.” Particularly, the issues involved, prima facie, a consideration of Article 17 of the Constitution and enforcement of the fundamental right of political parties and the citizens who constitute the electorates in Punjab and Khyber Pakhtunkhwa to exercise their right to elect representatives of their choosing to form new assemblies and provincial cabinets, according to the Supreme Court’s order.
“This is necessary for governments in the two provinces to be conducted by the Constitution.” Noted the CJP, adding that in addition to requiring faithful constitutional enforcement. These matters involve the performance of constitutional obligations of great public importance.
“There has been a significant development in recent days,” the CJP stated, adding that it appeared that President Arif Alvi had taken the position that he had the authority and responsibility to set a date for the general elections, by Section 57(1) of the Elections Act, following certain correspondence he had initiated with the ECP.
The order stated: “By order dated February 20, 2023, the President had set April 9, 2023, as the date for holding general elections in Punjab and KP, and had directed the ECP to fulfill its constitutional and statutory obligations in this regard.
The judge remarked that more than a month has passed since the dissolution of the provincial assemblies. And it appears that even the issue of setting the date for general elections. Which was the first step towards holding the elections, has not been resolved.
“Constitutional authorities appear to hold divergent and possibly even contradictory views on the issue. And as a result, several federal ministers appear to have challenged the authority asserted by the president. Since ministers are bound by the constitutional rule of collective responsibility. It would appear that this is the position of the entire federal cabinet.
“It should also be noted that statements attributed to the ECP have appeared in the public record to the effect that it was not receiving the necessary assistance and support, including the provision of the necessary funds, personnel, and security, to hold the general elections by the Constitution.”
The CJP noted that in the cases of Punjab and KP. The then-chief ministers advised their respective governors to dissolve the assembly under Article 112(1) of the Constitution.
Punjab, KP election limbo
On January 14 and 18, the PTI-led Punjab and KP assemblies were abolished to allow for snap elections.
On January 24th, the ECP sent letters to the principal secretaries of the Punjab and KP governors. Proposing that elections be held between April 9 and 13 in Punjab, and between April 15 and 17 in KP.
PTI petitioned the LHC on January 27 to order the Punjab governor to announce an election date promptly. In response, the court ordered the ECP to immediately announce an election date after consulting with the governor.
President Alvi urged the ECP on February 8 to “immediately declare” KP and Punjab election dates. It will end “dangerous speculative propaganda” about provincial assembly and general elections.
Nonetheless, the governors of the two provinces have not yet provided a date for the elections, citing various excuses.
President Alvi had invited Chief Election Commissioner (CEC) Sikandar Sultan Raja to an urgent meeting on February 17 to discuss consultations on election dates, but the ECP informed him that he had no role in the announcement of election dates for general elections to provincial assemblies, as this was the commission’s constitutional duty.
As a result, the president unilaterally announced April 9. As the date for the Punjab and KP assemblies’ general elections on Monday.
Political opponents accused him of acting like a PTI employee. While the ECP stated it would announce the election schedule only after the “competent authority” determines the date.
