• No one, except court, has power to jump 90-day deadline, observes CJP
• PPP not in favour of unnecessary delay
• Punjab governor says not his job to announce date

ISLAMABAD: The Sup­re­me Court is expected to announce on Wednesday a verdict to settle, once and for all, which constitutional functionary — the president, governor, or the Election Commission of Pakistan (ECP) — should announce the election date in case the provincial assemblies are dissolved.

After a day-long hearing, a five-judge Supreme Court bench hea­ded by Chief Justice Umar Ata Ban­dial closed proceedings at about 5:15pm for a short order, but then decided to reserve the verdict until Wednesday morning.

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 emphasised 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.

‘Against unnecessary postponement’

Farooq 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.

In KP, the governor has the authority to announce the date for the elections but for Punjab, the statute was silent and therefore ECP had to announce the date, Farooq Naek argued. It was not the mandate of the political parties to fix a date for the elections, he added.

‘Evolve consensus’

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.

On the contrary, the apex court started regular proceedings on Monday and is set to announce the verdict today. “We have accommodated this case because it concerns the enforcement of the Constitution,” he stressed. Farooq Naek however pleaded that the apex court should have issued directions to the high courts to wrap up the case as early as possible.

When Justice Bandial said the court rarely initiates suo motu cases, the counsel commented that the judicial activism started in 2007 was now turning into judicial restraint. “Nobody seems bothered despite the fact that the assembly was dissolved on Jan 14,” observed Justice Mandokhail.

Salman Akram Raja, the president’s counsel, argued that the president accepts that in the case of KP, he had no role in giving the date. The president is very concerned about his constitutional role and all he had done was follow the spirit of the Constitution but he was being attacked in the media for allegedly violating Article 6 (treason), the counsel regretted.

He added that even the cabinet had written a letter to the president stating that he had done something wrong that falls within the purview of Article The counsel said that the president had waited for the judgment of the high court and even invited the ECP. But when the commission refused to engage, then the president consulted his aides who advised him to play his constitutional role. The 90-day limit has to be taken seriously, the counsel argued.

Justice Muhammad Ali Mazhar wondered would the president wait for a couple of years if the PM did not render any advice to give a certain election date.

Mr Raja added it was still possible to hold elections within the stipulated timeframe even if we start the election process on Wednesday.

But for this, we have to compress certain requirements like the time for the election campaign, he added.

Mustafa Ramday, representing the Punjab governor said that his client has no constitutional authority to give the election date when he had not dissolved the assembly.

The ECP representative, Shajeel Shaharyar said the governor should announce the date even if he did not dissolve the assembly.

Published in Dawn, March 1st, 2023

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