The Supreme Court (SC) ordered on Wednesday that elections in Punjab and Khyber-Pakhtunkhwa (K-P) should be held in the next 90 days with the chief justice viewed that 'democracy cannot exist without assemblies'. The apex court in a 3-2 verdict, ruled 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.

“Keeping in view the order dated 23.02.2023 and the additional notes attached thereto by four of us (Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Jamal Khan Mandokhail and Justice Athar Minallah) as well as the discussion/deliberations made by us in the ante-Room of this Court, the matter is referred to the  Chief Justice for reconstitution of the Bench”, stated the court order signed by nine judges.

Justice Minallah, who did not recuse himself, in his note, urged for the formation of the full court to hear this matter. Likewise, Justice Afridi, who also did not recuse, said that the chief justice should take decision regarding his retention in the newly-constituted bench. Ahead of the verdict, Room No.1 of the court where the much anticipated decision was announced, packed with journalists and lawyers. PTI’s Shireen Mazari and Fawad Chaudhry and AML chief Sheikh Rashid were also in attendance.

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 Wednesday. 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 emphasized 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.

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. It is pertinent to mention here that President Dr Arif Alvi announced April 9 as the date for holding general elections for Punjab and Khyber Pakhtunkhwa (KP) assemblies. He announced the date under section 57(2) of the constitution.

In a letter written to Chief Election Commissioner (CEC) Sultan Sikandar Raja, President Arif Alvi said the constitution does not allow to exceed 90 days for holding elections after the dissolution of assemblies and he has taken the oath to defend and protect the constitution. The letter stated that ECP and governor KP and Punjab are not fulfilling their duties to hold elections within 90 days and the president has announced an election date to avoid violation of the constitution.

He said that both the constitutional offices are placing the ball in each other’s court, which is resulting in delay and creating a serious danger to the constitution. President Arif Alvi said that it is ECP’s responsibility to hold the election in 90 days and he started the process of serious consultation on the election date.

It is pertinent to mention here that the Punjab and KP assemblies were dissolved on Jan 18 and Jan 14, respectively, after former prime minister Imran Khan had announced to dissolve assemblies in an attempt to force the government to hold snap polls. As per the Constitution of Pakistan, polls need to be held for the dissolved assemblies in 90 days.

Speaking outside the court, PTI leader Fawad Chaudhry hailed the verdict as a "victory for the constitution of Pakistan" which was seconded by AML chief Sheikh Rasheed as a "victory for Imran Khan". Fawad said that the two dissenting judges have "merely" said that since a Lahore High Court ruling on the matter already exists, the SC was "not required to take notice". "But all five judges agree that polls must be held within 90 days," he stressed. Fawad has also said that the court has bound the federation to facilitate polls and provide support, particularly in ensuring safety.

Credit : Independent News Pakistan-INP