PESHAWAR: A Peshawar High Court bench on Monday dismissed a petition seeking orders for the rescheduling of the presidential election over a violation of the Constitution.
Justice Ikramullah Khan and Justice Ishtiaq Ibrahim pronounced a short order of dismissing the petition after hearing preliminary arguments of petitioner and freelance journalist Shahid Orakzai, provincial advocate general Abdul Lateef Yousafzai and lawyer for the Election Commission of Pakistan Mohammad Mehfooz.
The petitioner said under Article 41(4) of the Constitution, the election for the office of the country’s president should be held not earlier than 60 days and not later than 30 days before the expiry of the term of the president in office.
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He said the chief election commissioner had issued a notification on Aug 16 wherein the election schedule for the presidential polls was notified under Articles 41(3) and 41(5) of the Constitution read with Article 254 of the Constitution.
The petitioner pointed out that Clause 5 of Article 41 could be invoked strictly when the office of the president became vacant by reason of death, resignation or removal of the president as laid down in Article 49(1).
He said for the time being, there was no vacancy in the office of the president and his five-year term would expire on Sept 8.
The petitioner wondered under the current circumstances, how the ECP could organise an election under Article 41(5) and skip Article 41(4), which dealt with the president’s election on the completion of his term.
He said if the election could not be held in the specified period under Article 41 (4) because the National Assembly was dissolved, than it should be held within 30 days of the General Elections to the Assembly, which in the present case was July 25.
He requested to declare that the election to the office of the President could not be held in the last 30 days of the term of the President in office.
Following hearing arguments of the petitioner in the morning the bench issued notices to the KP Advocate General and ECP for the same day as polling is scheduled for Sept 4 (Tuesday).
Later, advocate general Abdul Lateef appeared before the court and contended that the petition was not maintainable and was liable to be dismissed.
He said the petitioner was a resident of Rawalpindi and had filed the petition with the Peshawar High Court though he should have filed it with the Islamabad or Lahore high court. Mr Yousafzai said the petition was filed three days before the presidential election showing the mala fide intention of the petitioner.
He said the petitioner had no locus standi to file the petition as neither he was a candidate in the election nor was he a voter.
The AG said polling for the presidential election would be held in parliament and all four provincial assemblies and if the polling was stayed as all arrangements had been finalised, it would create legal problems.
He said if there was any legal deficiency in the notification issued by the CEC, the court had the power to rectify that error.
ECP lawyer Mohammad Mehfooz said the presidential election couldn’t challenged in the court and that if there was any error in the notification, it could be removed by the ECP.
Published in Dawn, September 4th, 2018