SC orders ECP to hold Punjab & KP assemblies election in 90 days

ISLAMABAD, Mar 01 (APP): The Supreme Court on Wednesday ordered the Election Commission of Pakistan (ECP) to hold the election of the provincial assemblies of Punjab and Khyber Pakhtunkhwa (K-P) in 90 days.

Chief Justice of Pakistan Umar Ata Bandial, Justice Munib Akhtar, and Justice Muhammad Ali Mazhar supported the verdict, while Justice Jamal Khan Mandokhail and Justice Syed Mansoor Ali Shah opposed the admissibility of the suo moto notice and dissented from the majority decision.

The court order stated that it was the constitutional duty of the Federation, in terms of clause (3) of Article 148, to ensure that the government of every province was carried on in accordance with the provisions of the Constitution.

“There can be no doubt that this duty includes ensuring that a general election to the assembly of every province is held, and enabled to be held, in a timely manner within the period set out in the Constitution. This duty is in addition to, and applies independently of, the duty cast under Article 220 on ‘all executive authorities in the Federation and in the provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions.

“It follows that the Federation, and in particular the Federal Government, is, inter alia, obligated, on an immediate and urgent basis, to forthwith provide the Election Commission with all such facilities, personnel, and security as it may require for the holding of the general elections.

“In like manner, it is the duty of the provincial governments, acting under the caretaker cabinets, to proactively provide all aid and assistance as may be required by the Election Commission. The duty cast upon the authorities as set out in the 2017 Act must also be discharged forthwith and proactively.

“It furthered that in ordinary circumstances the general election to the Punjab Assembly ought to be held on 09.04.2023, the date announced by the President in terms of his order of 20.02.2023. However, we are informed that on account of the delay in the emergence of the date for the holding of the general election, it may not be possible to meet the 90-day deadline stipulated by the Constitution.

“It is also the case that (possibly on account of a misunderstanding of the law) the Election Commission did not make itself available for consultation as required under the 2017 Act. The Election Commission is, therefore, directed to use its utmost efforts to immediately propose, keeping in mind ss. 57 and 58 of the 2017 Act, a date to the President that is compliant with the aforesaid deadline. If such a course is not available, then the Election Commission shall in like manner propose a date for the holding of the poll that deviates to the barest minimum from the aforesaid deadline. After consultation with the Election Commission, the President shall announce a date for the holding of the general election to the Punjab Assembly.”

The order stated that the Governor of the KP province must after consultation with the Election Commission forthwith appoint a date for the holding of the general election to the KP Assembly and the preceding clause.

It added that the order of the President dated 20.02.2023 was constitutionally competent and “it is hereby affirmed insofar as it applies to the Punjab Assembly; but the same is constitutionally invalid insofar as it applies to the KPK Assembly and is therefore hereby set aside. It also follows that the Governor of KPK Province, inasmuch as he has not appointed a date for the holding of the general election to the Assembly of that province is in breach of his constitutional responsibility.”

The order stated that parliamentary democracy was one of the salient features of the Constitution. “There can be no parliamentary democracy without Parliament or the Provincial Assemblies. And there can be neither Parliament nor Provincial Assemblies without the holding of general elections as envisaged, required and mandated by and under the Constitution and in accordance therewith. Elections, and the periodic holding of elections, therefore underpin the very fabric of the Constitution. They are a sine qua non for parliamentary democracy, and ensure that the sacred trust of sovereignty entrusted to the people of Pakistan is always in the hands of their chosen representatives.”

The court order stated that while the holding of general elections had different aspects and requirements, one that was absolutely crucial was the timeframe or period in which such elections were to be held.

“The Constitution envisages two such periods, being of sixty and ninety days respectively. In relation to a Provincial Assembly, the first period applies when the Assembly dissolves on the expiration of its term under Article 107 and the second period is prescribed when it is sooner dissolved under Article 112. The time periods so set down in Article 224(1) and (2) respectively are constitutional imperatives that command complete fidelity. We are here concerned with the dissolution of two Provincial Assemblies before the expiry of their terms and therefore to the holding of general elections in relation to each within 90 days.”

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