The Supreme Court (SC), in a 3-2 verdict, ruled on Wednesday that elections in Khyber Pakhtunkhwa and Punjab should be held within 90 days.
“Parliamentary democracy is a salient feature of the Constitution,” the top court remarked.
The verdict was announced by a five-member apex court bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprising Justice Mansoor Ali Shah, Justice Munib Akhtar, Justice Jamal Khan Mandokhail, and Justice Muhammad Ali Mazhar.
Justice Mandokhail and Justice Shah — who were among the four judges who had written additional notes in the Feb 23 order — dissented with the ruling and rejected the suo motu notice.
In the ruling, the apex court said that the election dates must be announced keeping in view articles 57 (notification of election programme) and 58 (alteration in election programme) of the Elections Act 2017.
It observed that the KP governor was in breach of his constitutional duty and should forthwith announce the date for elections.
For Punjab, the SC directed President Arif Alvi to consult with the Election Commission of Pakistan (ECP) and try to hold elections in the province in 90 days.
It also directed the federal government to make utmost efforts and extend all facilities to the provinces for elections.
It is pertinent to mention that both Punjab and KP have been under caretaker governments since the provincial assemblies were dissolved in January.
Ahead of the verdict today, Room No.1 of the court — where the much-anticipated decision was announced — was packed with journalists and lawyers. PTI’s Shireen Mazari and Fawad Chaudhry and Awami Muslim League chief Sheikh Rashid were also in attendance.
A quick recap of the previous proceedings
- Feb 24: Division in the bench seen after Justice Mandokhail, who is part of the current bench, objects to the suo motu notice and calls it “unjustified”.
- Feb 24: Justice Mandokhail also mentions audio recordings that purportedly featured fellow judge.
- Feb 27: SC bench reconstituted as Justice Ahsan, Justice Naqvi, Justice Minallah and Justice Afridi distance themselves from the bench.
- Feb 27: Reconstituted five-member bench debates role of governor and president in announcing election date.
- Feb 28: SC asks PTI and coalition parties to come up with a date for elections after discussion, but PDM says consultation will take more time.
After a day-long hearing on Tuesday, the bench closed proceedings at about 5:15pm for a short order, but then decided to reserve the verdict until today.
The court also asked political parties to consult their leaderships during a short break and come back with a consensus date for the elections, but PML-N counsel Mansoor Usman Awan told the court that consultation will take more time since the PDM coalition also has members in Balochistan, while the PML-N will also have to hold internal discussions as well as consult the PPP.
Attorney General for Pakistan Shehzad Ata Elahi contended that the power to fix the election date was vested in the ECP and if the commission had some evidence of any difficulty in holding the elections, it should not shy away from revealing the same. Justice Munib Akhtar observed that it seemed that the ECP was unaware of its constitutional responsibility to fix the election date and today they stand enlightened of their constitutional obligation.
The CJP pointed towards senior counsel Farooq H. Naek — who was representing PPP — and observed that nobody was doubting the bona fide of the government since they have reasons like terrorism or economic conditions, which the country was facing for the first time, but “we should at least decide which authority will announce the date to conduct elections in the provinces of Punjab and Khyber Pakhtunkhwa (KP)”.
The CJP emphasised that Article 254, which legalises any failure to comply with certain requirements within a stipulated period, did not give licence to anybody to overcome the constitutional obligation of holding the elections within 90 days since the elections have to be held even in eventualities like war or other calamities.
If the law is silent, still neither the executive authority nor parliament or any constitutional body has the power to exceed the time limit of 90 days of holding the elections except for the court, but then the court had to be satisfied with the overriding challenges in the way of conducting free and fair elections, the CJP observed.
Naek argued that the PPP did not want the postponement of elections unnecessarily, but rather want to participate in the polls provided they were held in accordance with the law in conducive circumstances. However, the current economic crisis makes it a difficult possibility, he added.
He said April 9 election date fixed by President Arif Alvi without consultation with the prime minister was a nullity in the law and added the discretion, which the president could exercise, was implicit in the constitution.
About the suo motu proceedings under Article 184(3), the counsel reminded that a similar case was pending before the Lahore High Court (LHC) which had even given a direction to the Punjab governor to announce the date in consultation with the ECP.
In KP, the governor has the authority to announce the date for the elections but for Punjab, the statute was silent and therefore ECP had to announce the date, Naek argued. It was not the mandate of the political parties to fix a date for the elections, he added.
Justice Shah asks parties to ‘evolve consensus’
Justice Syed Mansoor Ali Shah observed that the solution will come provided the interest of Pakistan is made the central point. He asked the parties to sit together to evolve a consensus.
PTI leader Fawad Chaudhry pleaded before the court that the issue should not be given into the hands of the executive, since the issue would get out of control if the 90-day period was not adhered to.
The CJP regretted that Peshawar High Court (PHC) took three weeks in issuing notice to respondents whereas the LHC held two hearings and adjourned the matter.
On the contrary, the apex court started regular proceedings on Monday and is set to announce the verdict today. “We have accommodated this case because it concerns the enforcement of the Constitution,” he stressed. Farooq Naek however pleaded that the apex court should have issued directions to the high courts to wrap up the case as early as possible.
When Justice Bandial said the court rarely initiates suo motu cases, the counsel commented that the judicial activism started in 2007 was now turning into judicial restraint. “Nobody seems bothered despite the fact that the assembly was dissolved on Jan 14,” observed Justice Mandokhail.
Salman Akram Raja, the president’s counsel, argued that the president accepts that in the case of KP, he had no role in giving the date. The president is very concerned about his constitutional role and all he had done was follow the spirit of the Constitution but he was being attacked in the media for allegedly violating Article 6 (treason), the counsel regretted.
He added that even the cabinet had written a letter to the president stating that he had done something wrong that falls within the purview of Article The counsel said that the president had waited for the judgment of the high court and even invited the ECP. But when the commission refused to engage, then the president consulted his aides who advised him to play his constitutional role. The 90-day limit has to be taken seriously, the counsel argued.
Justice Mazhar wondered would the president wait for a couple of years if the PM did not render any advice to give a certain election date.
Monday’s hearing
In their order on Feb 27, all nine judges had sent the matter to the CJP once again, asking for the reconstitution of the bench in light of the additional notes authored by Justice Mandokhail, Justice Shah, Justice Afridi and Justice Minallah as part of the Feb 23 order by the chief justice.
Two of these judges had also questioned the SC’s jurisdiction to invoke Article 184(3), which relates to its suo motu powers, in this matter.
Justice Ahsan and Justice Naqvi — whose inclusion to the original bench was opposed by the coalition government and the Pakistan Bar Council — as well as Justice Minallah and Justice Afridi, had distanced themselves from the bench. “These four judges have shown grace and stepped away from the bench,” the CJP said at the outset of the hearing.
At the outset of the hearing on Monday, Justice Bandial had observed that four judges had graciously disassociated themselves from the bench to avoid wasting time on trivial matters so that the case could proceed strictly in accordance with the Constitution.
The CJP also regretted that scurrilous allegations had been hurled, but two members said they would not sit on the bench whereas two judges expressed their opinion on the maintainability of the case. About Justice Mandokhail’s note, the CJP regretted it had emerged on social media even before the court order was signed and uploaded on the website.
In his additional note, Justice Shah mentioned the controversy in the public domain generated by the audio leaks relating to one of the members of the bench and, despite requests from within and outside the court, he noted there had been no institutional response to the allegations by this court or by the constitutional forum of the Supreme Judicial Council (SJC). Furthermore, there is news of references being filed against the member before SJC by the bar councils.
During the hearing, CJP Bandial observed that the parliament had “made it clear” in the Elections Act that the president can also give the election date. “How can the intention of the parliament be evaluated?” the CJP asked.
Referring to the Lahore High Court’s Feb 10 order of holding elections in Punjab, Barrister Zafar said that the ECP also did not comply with the court’s orders.
“Was the option for the contempt used?” Justice Mansoor Ali Shah asked here. The lawyer replied that a contempt plea was filed on Feb 14.
At one point, the role of the governor was debated. Justice Shah said that the governor’s role in parliamentary democracy was like that of a “post office” and questioned whether the matter of the assembly’s dissolution was his discretion.
Meanwhile, the chief justice noted that the ECP had asked the high court for staff — a request that was refused by the court. “This is an organisational matter.”
Later in the hearing, Justice Shah remarked that the president would have to step in where the “governor fails”.
However, Justice Akhtar remarked that a situation where the governor dissolved the assembly based on the advice sent to him but did not give the election date did not mean that the president can issue the date instead. “You will have to go to court in such a situation,” he told Barrister Zafar.
Later during the hearing, Justice Shah questioned if the ECP was bound to conduct polls on the date announced by the governor or if it could delay elections. To this, Zafar replied that there was no room for delay in the Constitution.
Meanwhile, Attorney General of Pakistan (AGP) Shehzad Ata Elahi said the Supreme Court should also consider Article 254 of the Constitution, to which Justice Mandokhail said the article would apply when any work was done with a delay.
“First, have the intention to work,” he told the AGP, to which the latter responded that elections were not possible on the date given by the president, adding that the ECP required 52 days according to the law.
“In any case, elections are not possible before April 25,” Elahi added.
Justice Mandokhail pointed out that the Supreme Court Bar elections were held on time in 2005 despite the earthquake.
At one point, Justice Akhtar wondered how the country’s situation was good enough for cricket matches but “[somehow] elections cannot happen”.
Suo motu notice
Last week, the top judge took suo motu notice of the delay in holding polls in Punjab and KP, saying that there appeared to be a “lack of clarity” on the matter.
In the notice, CJP Bandial said that the SC bench would consider the following questions:
- Who has the constitutional responsibility and authority for appointing the date for the holding of a general election to a provincial assembly, upon its dissolution in the various situations envisaged by and under the Constitution?
- How and when is this constitutional responsibility to be discharged?
- What are the constitutional responsibilities and duties of the federation and the province with regard to the holding of the general election?
In his order, the CJP observed that there was, to put it shortly, a lack of clarity on a matter of high constitutional importance.
The issues raised require immediate consideration and resolution by the Supreme Court. The decision was taken after a note was presented to the CJP against the backdrop of a Feb 16 order by a two-judge bench asking the chief justice to invoke a suo motu initiative in this regard.
“Several provisions of the Constitution need to be considered, as also the relevant sections of the Elections Act 2017. In particular, the issues involve, prima facie, a consideration of Article 17 of the Constitution and enforcement of the fundamental right of political parties and the citizens who form the electorates in Punjab and Khyber Pakhtunkhwa to exercise their right to elect representatives of their choice to constitute fresh assemblies and the provincial cabinets,” the SC order said.
“This is necessary for governments in the two provinces to be carried on in accordance with the Constitution,” observed the CJP, adding that these matters involve the performance of constitutional obligations of great public importance apart from calling for faithful constitutional enforcement.
“There is a material development in the last few days,” the CJP noted, adding that it appeared that subsequent to certain correspondence initiated by President Arif Alvi with the ECP, the former had taken the position that it was he who had the authority and responsibility for appointing a date for the general elections, in terms as provided in Section 57(1) of the Elections Act.
The order said: “By an order made on Feb 20, the President had appointed April 9, 2023, to be the date for the holding of the general elections in Punjab as well as KP and had called upon ECP to fulfil its constitutional and statutory obligations in this regard.
More than one month has now elapsed since the dissolution of the provincial assemblies and it seems prima facie that even the matter of appointing the date of general elections which was a first step towards the holding of the elections, has still not been resolved, the judge remarked.
“Constitutional authorities appear to hold divergent and perhaps even conflicting, views on the issue, and thus several federal ministers appear to have contested the authority asserted by the president. Since ministers act under the constitutional rule of collective responsibility, it appears, prima facie, that this is the view taken by the federal cabinet as a whole.
“It is also to be noted that statements attributed to ECP have appeared in the public record to the effect that it was not being provided the requisite assistance and support, in particular by the provision of necessary funds, personnel and security, as would enable it to hold the general elections in accordance with the Constitution.”
The CJP observed that in the cases of Punjab and KP, the then chief ministers tendered advice to their respective governors under Article 112(1) of the Constitution to dissolve the assembly.
Punjab, KP election limbo
The Punjab and KP assemblies — where the PTI had governments — were dissolved on January 14 and January 18, respectively, in an attempt to pave the way for snap polls.
On Jan 24, the ECP wrote letters to the principal secretaries of Punjab and KP governors, suggesting elections in Punjab between April 9 and 13, and in KP between April 15 and 17.
At the same time, the PTI had on Jan 27 approached the LHC seeking orders for the Punjab governor to immediately announce a date for an election in the province following which the court had directed the ECP to immediately announce the date for elections after consultation with the governor.
Meanwhile, President Alvi had also urged the ECP on Feb 8 to “immediately announce” the date for polls in KP and Punjab and put an end to “dangerous speculative propaganda” on both the provincial assembly and general elections.
However, so far, the governors of the two provinces have refrained from providing any date for the polls on several pretexts.
On Feb 17, President Alvi had invited Chief Election Commissioner (CEC) Sikandar Sultan Raja for an urgent meeting regarding consultations on election dates but the ECP told him he had no role in the announcement of dates for general elections to provincial assemblies and the commission was aware of its constitutional obligation in this regard.
Subsequently, the president on Monday unilaterally announced April 9 as the date for holding general elections for the Punjab and KP assemblies.
The move drew sharp criticism from his political opponents, who accused him of acting like a PTI worker while the ECP said it would announce the poll schedule only after the “competent authority” fixes the date.
This is a developing story that is being updated as the situation evolves. Initial reports in the media can sometimes be inaccurate. We will strive to ensure timeliness and accuracy by relying on credible sources, such as concerned, qualified authorities and our staff reporters.
