ISLAMABAD: Justice Athar Minallah of the Supreme Court on Thursday regretted that President Dr Arif Alvi, Punjab and Khyber Pakhtunkhwa governors, and the chief election commissioner (CEC) were guilty of breaching their statutory duties by not holding elections within the stipulated period of 90 days.

In an additional note, Justice Minallah regretted that people of Pakistan, particularly the registered voters, have been deprived of the most fundamental right to participate in the governance of the state through chosen representatives and obviously the right to vote in accordance with the law.

The note came in addition to the Nov 3 order in which the Supreme Court had expressed confidence that the polls would be held without disruption on Feb 8, 2024.

Justice Minallah observed that the conduct and failure of the president, governors and CEC to discharge their constitutional duties made them answerable to the people.

He said the people became victims of their wrongful exercise of public powers and reckless disregard for duties under the Constitution.

Justice Minallah says Constitution empowers citizens to ‘police the misconduct’ of public authorities, govt

They have exposed themselves to actions against their tortuous acts, the note said, adding that it was the duty of public authorities to obey the law and exclusively serve the interests of the general public. “It is the duty of the courts to put an end to impunity against the violation of the Constitution and constitutional rights,” Justice Minallah emphasised.

The note regretted that people of Pakistan were being governed by unelected caretakers in violation of the Constitution and their fundamental rights. As a corollary, it is the duty of the courts to ensure that if citizens file claims for alleged tortuous acts of public authorities, they are decided expeditiously and in accordance with law, the note said.

It is a primary constitutional duty of ECP that the delayed elections are held in a fair, free and transparent manner without giving anyone an opportunity to complain. The ECP will be failing in its duty if the elections are not only held in a fair, free and transparent manner but they must also be seen as such by each citizen.

The registered voters — 125,626,390 — who have suffered the denial of their most valuable constitutional rights may, if they so desire, exercise their right to claim remedies for the tortuous acts and thus vindicate their rights and set an example for creating deterrence for the future, Justice Minallah observed.

The constitutionally created right empowers the people to police the misconduct of public authorities and the government in addition to being compensated and vindicated for a wrong. If effectively used and enforced, it is a right that would encourage public participation in putting an end to abuse of powers and the impunity for violating the Constitution and constitutional rights, the note said.

It is a right exercisable by citizens and the general public without being at the mercy of others, such as the federal government, for commencing criminal proceedings in case of the offence under Article 6 (high treason).

It will be the duty of the courts to ensure that the citizens or other persons effectively enforce this valuable right. Imagine if this right had been exercised by the people of Pakistan against the usurpers and collaborators for abrogating, subverting or holding the Constitution in abeyance, the note said.

The right has been expressly enshrined as a constitutional right and in such an eventuality the courts enjoy wide discretion to design or create a remedy to appropriately redress a

constitutional right and to deter repetition of the tortuous acts in future, the note said.

Published in Dawn, November 24th, 2023