The Supreme Court (SC) ruled on Wednesday that elections in Punjab and Khyber Pakhtunkhwa, both of which have been run by caretaker administrations since the provincial assemblies were dissolved in January, must be held within 90 days, according to a 3-2 decision.
The Constitution’s distinguishing characteristic is parliamentary democracy. Without the Parliament or the provincial assemblies, there cannot be a parliamentary democracy, the court ruled. And without holding general elections as intended, necessary, and mandated by and under the Constitution and in line therewith, neither Parliament nor provincial assemblies are possible.
Important conclusions from the judgement
- Conclusions from In Punjab, the president’s April 9 date is “constitutionally competent” because the governor did not dissolve the parliament.
- The ECP must propose a date that “deviates to the barest minimum” from the deadline if polls cannot be held within 90 days.
- Date of Punjab elections to be announced by President following consultation with ECP.
- In KP, the governor is required to consult with ECP before announcing the date because he dissolved the assembly on the suggestion of the chief minister, and the president’s date is invalid.
- The president or governor must be able to contact ECP “proactively” for advice on the timing of the verdict.
Two of the four judges who had added supplementary notes to the Feb. 23 judgement, Justice Jamal Khan Mandokhail and Justice Syed Mansoor Ali Shah, disagreed with the decision.
The top court determined in its written decision, that when a governor dissolved a provincial parliament, the governor was also legally obligated to set the election’s date.
The president is required under the constitution to designate a date for the general election that must take place in cases where the assembly is not dissolved by order of the governor.
The president or governor “must discharge the constitutional responsibility of appointing a date for the said election swiftly, without any delay, and within the shortest time possible,” the court ruled, because elections after the dissolution of a provincial assembly had to be held within a certain amount of time.
The directive said that the Election Commission “must be promptly available to the President or the Governor, and shall be prepared for such consultation as may be required for a date for the holding of general elections.”
It continued by stating that due to the governor’s refusal to sign the assembly’s dissolution summary, the president was legally required to fulfil the constitutional duty of setting the date for the general election.
The directive said that the Election Commission “must be promptly available to the President or the Governor, and shall be prepared for such consultation as may be required for a date for the holding of general elections.”
It continued by stating that due to the governor’s refusal to sign the assembly’s dissolution summary, the president was legally required to fulfil the constitutional duty of setting the date for the general election.
The judgement stated, “It also follows that the governor of KP is in violation of his constitutional duties in that he has not set a date for the holding of the general election to the assembly of that province.”
Also, it stated that although the general election in Punjab should normally take place on April 9 — the date set by the president — due to delays in the notification of the election date, the province might not be able to achieve the 90-day deadline.
“The Electoral Commission is hereby directed to utilise its best efforts to promptly submit to the President a date that complies with the deadline, taking in mind sections 57 and 58 of the 2017 Act.
The President will declare a date for the Punjab Assembly general election following consultation with the ECP.
The judgement stated that if such a course of action was unavailable, the Election Commission “must similarly suggest a date for the holding of the poll that deviates to the barest minimum from the aforesaid deadline.”
After consultation with the ECP, the SC ordered the governor of KP to choose a date for the province’s elections.
Also, the federal government was told by the top court to “guarantee that the government of every province is carried on in conformity with the Constitutional provisions.”
It stated that among other things, “the federal government is obliged immediately and urgently to provide the Election Commission with all such facilities, staff and security as it may necessary for the holding of the general elections.”
The court then resolved the situation.
Today’s much-anticipated ruling was revealed in Room No. 1 of the court, which was jam-packed with reporters and attorneys. Shireen Mazari, Fawad Chaudhry, and Sheikh Rashid, the leader of the Awami Muslim League, were all present.
Judge Shah and Justice Mandokhail’s dissenting opinion
Justice Shah and Justice Mandokhail stated in a combined dissent letter, that the suo motu proceedings started by the CJP were “wholly unwarranted” and were also started with “undue haste.”
The suo motu proceedings, according to the note, “do not constitute a fit case to exercise the extraordinary original jurisdiction of this court under Article 184(3) of the Constitution and are therefore not maintainable as the same constitutional and legal issues seeking the same relief are pending and being considered by the respective provincial high courts in Lahore and Peshawar, without there being any excessive delay in the conduct of the proceedings before them.”
The suo motu proceedings initiated by the CJP were deemed “wholly unjustified” and “launched with excessive haste,” according to Justice Shah and Justice Mandokhail in a joint dissent letter.
The note states that the suo motu proceedings “do not constitute a fit case to exercise the extraordinary original jurisdiction of this court under Article 184(3) of the Constitution and are, therefore, not maintainable because the same constitutional and legal issues seeking the same relief are pending and being considered by the respective provincial high courts in Lahore and Peshawar, without there being any excessive delay in the conduct of the proceedings before them.”
As a single Bench of the Lahore High Court has already decided the matter in favour of the petitioner before the said High Court via judgement dated 10.02.2023 and the said judgement is still in the field, there is no justification to invoke our extraordinary jurisdiction under Article 184(3) to initiate suo motu proceedings or entertain petitions under Article 184(3) of the Constitution.
It stated that none of the aforementioned petitioners had addressed this Court pursuant to Article 185(3) of the Constitution. “The intra-court appeals (ICAs) filed against the said verdict are pending before the Division Bench of the Lahore High Court.”
In their note, the judges noted that while a constitutional case was pending before the high court, it should not be interfered with but should be encouraged in order to increase the independence of provincial courts.
They said that the current SC proceedings had caused the matter in the high court to be postponed, despite the CJP’s previous assertion that there had been a “inordinate delay in the processes pending before the high courts.”
Nonetheless, given the significance of the situation, the memo noted, “we expect that the respective high courts shall rule the matters standing before them within three working days from today.”
The dissenting note stated, “We, therefore, concur with the decisions dated February 23 made by our learned brothers, Yahya Afridi and Athar Minallah, dismiss the present constitution petitions, and discontinue the suo motu proceedings.
Judge Shah requests that the parties “develop consensus”
Judge Syed Mansoor Ali Shah said during the hearing on Tuesday that if Pakistan’s interests are prioritized, a solution will materialize. He asked everyone to come to an agreement by sitting down together.
Fawad Chaudhry, the head of the PTI, argued before the court that the matter shouldn’t be left in the hands of the executive because it would spiral out of control if the 90-day window wasn’t followed.
The CJP remarked that while the LHC held two hearings and deferred the case, the Peshawar High Court (PHC) took three weeks to issue notice to the respondents.
The CJP remarked that while the LHC held two hearings and deferred the case, the Peshawar High Court (PHC) took three weeks to issue notice to the respondents.
On the other hand, the top court began its regularly scheduled sessions on Monday and will deliver its decision today. He emphasized that “we have accommodated this issue because it involves the implementation of the Constitution.” Farooq Naek argued, however, that the high courts should have received instructions from the supreme court to resolve the case as quickly as feasible.
The attorney remarked that the judicial activism that began in 2007 was now changing into judicial restraint when Judge Bandial stated that the court rarely initiates suo motu matters. Despite the fact that the parliament was dissolved on January 14, nobody seemed to care, according to Judge Mandokhail.
Salman Akram Raja, the president’s attorney, asserted that the president acknowledges that he had no involvement in setting the date in the case of KP. The president is very worried about playing out his constitutional duties, and despite only acting in accordance with the letter of the law, the lawyer grieved that the president was being attacked in the media for allegedly breaking Article 6 (treason).
He continued by saying that the president had received a letter from the cabinet informing him that he had violated Article The attorney claimed that the president had even invited the ECP while he awaited the high court’s decision. However, when the commission declined to participate, the president spoke with his advisers, who recommended him to fulfil his constitutional obligations. The attorney stated that the 90-day deadline must be regarded seriously.
Judge Mazhar questioned whether the president would hold off calling an election for a few years if the prime minister did not offer any advise.
