Supreme Court of Pakistan
Taking up petitions seeking timely elections within 90 days of the dissolution of assemblies, Chief Justice of Pakistan (CJP) Qazi Faez Isa on Monday observed it was no longer possible to meet the deadline, and questioned why they were not listed for hearing on an urgent basis.
Leading a three-member bench that included Justices Athar Minallah and Aminud Din Khan, the CJP took up petitions filed by the Supreme Court Bar Association, the Pakistan Tehreek-e-Insaf (PTI) and others seeking polls within the stipulated time. Commencing proceedings, he asked SCBA lawyer Abid Zuberi to give arguments based on facts and not rhetoric.
As Zuberi started to speak on the 2017 census, the CJP questioned why he had not filed any plea between 2017 and 2021, noting questions were being raised after the process was completed. To this, the lawyer clarified that he was not taking a position that the 2023 census was wrong. Justice Minallah then observed that only people responsible for the delay should be held responsible and questioned if the counsel wanted polls nationwide.
“Yes, that’s our sole demand: elections,” responded the counsel, with the CJP observing the SCBA’s petition was based on the census issue. Justice Minallah then inquired when the 90-day time period would end. “90-day period will complete on Nov. 3,” responded Zuberi.
“If we give orders to hold polls within 90 days will it be possible to hold the elections?” asked the CJP. Zuberi admitted this was no longer possible, with the CJP advising the lawyer to amend his petition accordingly. He then asked why President Arif Alvi, if he was the competent authority to issue a date for polls, had failed to perform his duty.
“What can we do against the president? We can issue orders to restore our writ, if anyone is violating the Constitution then Article 6 will be applied,” remarked the CJP. To Zuberi pointing out that the Supreme Court had ordered the conduct of polls in Punjab and Khyber-Pakhtunkhwa, the CJP asked why he had not filed a contempt petition to ensure the ruling was implemented.
CJP Isa recalled that a lawyer had written to the president seeking an election date and questioned what had become of it. Lawyer Munir Ahmed, one of the petitioners, said they had not received any response. “Then you are holding the president responsible for the delay in elections,” remarked CJP Isa.
Justice Minallah pointed out that a census was a constitutional requirement and a delay in the elections was understandable. He then advised the lawyer to restrict his case to the issue of polls in 90 days. “It is not possible to hold polls within 90 days; tell us what is possible,” remarked CJP Isa.
Lawyer Anwar Mansoor Khan, taking the podium, argued that President Alvi’s letter to the Election Commission of Pakistan (ECP) had made it the relevant authority to give a date for polls. To this, the CJP pointed out that the president’s letter had sought an opinion on the date from the ECP, asking whether the court should give decisions on the basis of tweets.
The CJP then asked Zuberi to explicitly state whose responsibility it was to give a date for the polls, with the lawyer stating it was the president’s prerogative. “You are twisting things again. If the president is responsible then do you want action against the president?” CJP Isa asked.
To Zuberi maintaining that holding polls within 90 days was a constitutional requirement, the CJP reiterated that the counsel was not identifying whose actions had led to the polls being delayed. “If you talk about elections then we can give a decision but if you talk about the interpretation of the Constitution then we will have to form a constitutional bench,” said CJP Isa, noting the bench had two questions before it: who was responsible for announcing a date for polls, and whether elections could be held within 90 days.
Adjourning the hearing until Nov. 2, he noted in his written order that the petitioners were contending the census was notified as an excuse to delay the elections. “The petitioners said that holding the election in 90 days is a constitutional requirement. According to the petitioners, elections are not possible within 90 days after the delimitation of constituencies and the census,” he wrote, issuing notices to the ECP and the federal government.
The former government was dissolved prematurely, requiring polls to be held within 90 days, but it notified the new census in its waning days, triggering a constitutional requirement to conduct fresh delimitations. The delimitation process added roughly two months to the tenure of caretakers, with the ECP announcing last month it would conduct polls in the last week of January. However, it has yet to issue a definitive date, pushing several parties to demand that elections not be delayed indefinitely.