Farooq Naeem—AFP
The Supreme Court, in a 3-2 verdict, on Wednesday directed the Election Commission of Pakistan (ECP) to consult with President Arif Alvi to announce a date for elections in Punjab, and with Khyber-Pakhtunkhwa Governor Haji Ghulam Ali to fix a date for polls for its assembly.
“Since the general election on a dissolution of a Provincial Assembly has to be held within a time period stipulated by the Constitution itself, which is a constitutional imperative, the President or, as the case may be, the Governor must discharge the constitutional responsibility of appointing a date for the said election swiftly and without any delay and within the shortest time possible,” reads the ruling, directing the ECP to “proactively be available” to both officials for consultations on issuing a date for the holding of general elections.
Acknowledging that the governor had not dissolved the Punjab Assembly, the ruling said in this scenario the responsibility of issuing a date for polls must be exercise by the president. However, it added, as the governor had dissolved the KP Assembly, he must discharge his responsibility to appoint a date for general election in the province.
In this regard, it said, the president’s order announcing a date for polls in the two provinces was “constitutionally invalid” for application to the KP Assembly, but was constitutionally competent for Punjab. “It also follows that the Governor of [KP], inasmuch as he has not appointed a date for the holding of the general election to the Assembly of that Province is in breach of his constitutional responsibility,” it adds.
The ruling also grants space for a “barest minimum” delay beyond the 90-day constitutional deadline to conduct polls after an assembly’s dissolution, noting that this could result from the delay in announcing a date for polls. “The Election Commission is therefore directed to use its utmost efforts to immediately propose, keeping in mind sections 57 and 58 of the [Elections Act, 2017], a date to the President that is compliant with the aforesaid deadline. If such a course is not available, then the Election Commission shall in like manner propose a date for the holding of the poll that deviates to the barest minimum from the aforesaid deadline,” it said, adding that the president should announce a date after these consultations. Similarly, it said, the governor should announce a date for polls in KP after consultation with the ECP.
The split ruling also spells out the federation’s duty, under Article 148(3) of the Constitution, to ensure a general election to the Assembly is held and enabled to be held within a timely manner. “This duty is in addition to, and applies independently of, the duty cast under Article 220 on ‘all executive authorities in the Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions,’” it states, stressing that the federal government is “obligated, on an immediate and urgent basis,” to provide the ECP will all necessary facilities—personnel, security, funds—it needs to holding the elections.
The five-member bench led by the CJP, and comprising Justices Mansoor Ali Shah, Munib Akhtar, Muhammad Ali Mazhar, and Jamal Khan Mandokhail, was considering three questions in this suo motu: 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? Stressing that parliamentary democracy is one of the salient features of the Constitution, the ruling states that this cannot exist without Parliament or the provincial assemblies.
“And there can be neither Parliament nor provincial assemblies without the holding of general elections as envisaged, required and mandated by and under the Constitution and in accordance therewith. Elections, and the periodic holding of elections, therefore underpin the very fabric of the Constitution. They are a sine qua non for parliamentary democracy, and ensure that the sacred trust of sovereignty entrusted to the people of Pakistan is always in the hands of their chosen representatives,” it maintains.
Dissenting note
Justices Shah and Mandokhail have penned a dissenting note arguing that suo motu proceedings in this particular case are “wholly unjustified” in the mode and manner in which they were taken up. Maintaining that the constitutional petitions placed before the bench did not “constitute a fit case to exercise” the court’s powers under Article 184(3), they reiterated that the same cases were already pending and being deliberated upon by the Lahore and Peshawar high courts. Noting that the LHC had already provided relief to the petitioner, they said intra-court appeals against the said judgment were currently pending, while no petitioners had approached the apex court under Article 185(3) of the Constitution.
“Once a constitutional issue is pending before a provincial High Court, keeping in view the federal structure of our Constitution, the autonomy and independence of the apex provincial constitutional court, should not be readily interfered with rather be supported to strengthen the provincial autonomy and avoid undermining the autonomy of the provincial constitutional courts,” they wrote, stressing there had been no “inordinate delay” in proceedings pending before the high courts and the suo motu had actually “unnecessarily delayed” the matter.
“Even otherwise without prejudice to the above, such like matters should best be resolved by the Parliament,” they said, adding that they agreed with the orders passed by Justices Yahya Afridi and Athar Minallah in which they had maintained that the suo motu was not valid.
In a footnote, the two judges have recalled that the case was initially heard by a nine-member bench. “The aforementioned two honorable judges decided the matter by dismissing the said petitions,” they said, referring to Justices Minallah and Afridi’s notes. “Later on two other honorable judges disassociated themselves from the bench for personal reasons and as the two aforementioned judges had dismissed the matter, the bench was reconstituted into a five-member bench,” it said, referring to the recusal of Justices Ijazul Ahsan and Mazahar Ali Akbar Naqvi. “The decisions of the aforementioned two honorable judges dated Feb. 23, 2023, form part of the record of this case,” they added.