PESHAWAR: The Peshawar High Court on Thursday gave two days’ time to the Khyber Pakhtunkhwa governor to file reply to the petitions seeking orders for him to fix the date for the provincial assembly’s elections.
A bench consisting of Justice Ishtiaq Ibrahim and Justice Syed Arshad Ali fixed Feb 20 for the next hearing into two petitions against a delay in the announcement of the schedule for polls to the provincial assembly, which was dissolved on Jan 18.
It observed that if the reply was not filed, it would decide the matter in light of the available records, and won’t give more time to the respondents, including the governor, for filing their response.
Justice Ibrahim observed that it was an important constitutional matter, so the court won’t tolerate any excuses for delaying it.
Declares it will decide matter on its own if response not filed
The petitions are filed by the Pakistan Tehreek-i-Insaf through its secretary general, Asad Umar, and woman lawyer of the party Mashal Azam.
The petitioners requested the court to direct the provincial governor to follow the Constitution by ensuring the holding of polls within 90 days of the dissolution of the assembly.
They also prayed to the court to declare unconstitutional and illegal the governor’s reported assertion that the decision on polls would be made in light of reports of intelligence and other agencies.
Senior lawyers Qazi Mohammad Anwar, Mohammad Moazam Butt and Shumail Ahmad Butt appeared for the petitioners, whereas provincial advocate general Amir Javed and advocate Mohsin Kamran Siddique represented the provincial government and the Election Commission of Pakistan respectively.
Mr Anwar informed the bench that he had received a call from PTI chief Imran Khan last night asking him to represent him on the matter.
He said that the provincial government had been adopting the plea that the ECP was bound to consult the governor for holding elections.
The lawyer, however, said that consultation with the governor was required on some matters but the ECP could act on its own on certain matters and even could announce the election schedule.
AG Amir Javed informed the bench that the governor’s reply to the petitions could not be filed on the court’s orders due to his “several pressing engagements.”
He said that he had informed the principal secretary to the governor about the matter, but as the governor had to attend convocation of the Hazara University apart from other engagements, the reply could not be filed.
The AG said that the response of the governor would be submitted to the court before the next hearing.
Moazam Butt contended that the governor had been using delaying tactics, so the court might ensure that the governor files comments on the petitions.
Mr Butt argued that under the Constitution, elections had to be held within 90 days of the dissolution of the assembly.
He said that the ECP had so far not filed its comments in the case.
Raising an objection, the lawyer said that the AG was representative of the provincial government, so how he could file the reply on behalf of the government.
Justice Ishtiaq Ibrahim observed that as the AG was the principal law officer of the province, the bench had asked him to file the reply of the governor and if required, the governor could nominate a counsel for himself.
Former governor and PTI leader Shah Farman also appeared before the court and said that to ensure holding polls within 90 days of the dissolution of the assembly the election process had to be started at least 54 days prior to the expiry of that period.
He said that the process included announcement of the election schedule, filing of nomination papers and scrutiny of papers.
Mr Farman said that by those calculations, the election date should be given by Feb 23.
The ECP’s counsel told the court that the commission field comments on the petitions in the morning.
During the previous hearing on Feb 14, the AG had contended that the governor enjoyed immunity under Article 248 of the Constitution, so he was not answerable to any court of law for the exercise of powers and performance of functions of his office.
However, the bench directed him to mention whatever objection he had to the petitions in the written response for its examination.
Published in Dawn, February 17th, 2023
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