By Special Correspondent

ISLAMABAD: In a landmark decision, the Supreme Court on Wednesday directed the Election Commission of Pakistan to hold elections to the two provincial assemblies within 90 days of the dissolution of the provincial assemblies as it announced its judgment in the suo-moto case pertaining to the delay in announcing a date for elections in the two provinces, to settle the

issue ‘once and for all’. 

In the three/two majority decision, the apex court ordered the concerned authorities to hold elections in the two provinces within 90 days. Justice Mansoor Ali Shah and Justice Jamal Mandokhel gave dissenting notes. The most significant question before the five-member bench was which constitutional office — the president, the governors, or the Election Commission of Pakistan — should announce the date for the election in case the provincial assemblies are dissolved. Both the provinces have been under caretaker governments since the respective provincial assemblies were dissolved in January.

The Supreme Court had a day earlier reserved its judgment in the suo-moto proceedings after a marathon hearing for two days. The verdict was expected to be announced at 11am. The SC judges who heard the case were Chief Justice Pakistan Umar Ata Bandial, Justice Munib Akhtar, Justice Mansoor Ali Shah, Justice Jamal Khan Mandokhail, and Justice Muhammad Ali Mazhar.

The top judge had on Monday decided that a five-member bench would conduct the proceedings after Justice Ijazul Ahsan, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Yahya Afridi, and Justice Athar Minallah stepped away from the case. The court had also asked the political parties to consult their respective leaderships, during a short break, and come back with a consensus date for the polls but the Pakistan Muslim League-Nawaz counsel Mansoor Usman Awan told the apex court that consultations will take more time since the Pakistan Democratic Movement coalition also has members in Balochistan, while the Pakistan Muslim League-Nawaz will also have to hold internal discussions and also have to consult the Pakistan Peoples’ Party.

Pakistan’s Attorney General Barrister Shehzad Ata Elahi contended before the court that

the power to fix the election date was vested in the Election Commission of Pakistan and if the ECP has some substantial evidence of any difficulty in holding the polls, it should not shy away from revealing the same before the court. Justice Munib Akhtar observed that it looked that the Election Commission was unaware of its constitutional obligation to fix the election

date and ‘today they stand enlightened of their constitutional obligation’.

The Chief Justice while pointing towards senior counsel Farooq H. Naek — who represented PPP — observed that nobody was doubting the bona-fide of the government since they had reasons like economic conditions and terrorism which the country is facing and added “we should at least decide which office will announce the date to conduct elections in the provinces of Khyber Pakhtunkhwa and Punjab”.

The Chief Justice emphasised that Article 254 of the constitution, which legalizes any failure to comply with certain requirements within a stipulated time period, doesn’t give a licence to anybody to evade from the constitutional responsibility of holding the polls within 90 days as the elections must be held even in eventualities like calamities or wars.

If the law is silent, still neither parliament nor the executive authority or any constitutional body has the power to exceed the limit of 90 days time for holding the elections except the court, but then the court must be satisfied with the overriding challenges in the way of conducting free and fair elections, observed the Chief Justice.

“Everyone agrees that under Article 224, elections are required in 90 days. The court is

ascertaining that from whom the election date should come from. It has to be determined who will give the election date in the future,” said CJP Bandial adding that the court only wanted to shed light on the law. “The court is not giving or taking anything from anyone,” he said, to which Farooq H. Naek responded: “[We] are grateful to the apex court for restraint in judicial

activism.”

Supreme court order copy

During the hearing, Chief Justice Bandial said that none of the institutions other than the court, had the authority to extend elections beyond 90 days. “And the court can only pass these orders on solid grounds,” he maintained, recalling that economic difficulties were also brought up during the 1988 presidential reference.

The CJP asserted that the Constitution doesn’t give a “license to delay polls beyond 90 days” adding that the law could only be invoked during a war or natural calamity. “If elections are not held in time, uncertainty will continue to prevail,” he said.

On Saturday, the coalition parties had petitioned the apex court for formation of a ‘full court’ — comprising all judges except Justice Ejazul Ahsan and Justice Mazahir Ali Akbar Naqvi — to conduct the suo motu proceedings. However, the CJP turned down their plea and the joint petition, on Monday withdrew the plea.

Supreme Court suo-moto notice

Last week, the top judge took suo-moto notice of the delay in holding polls in Khyber-Pakhtunkhwa and Punjab, saying that there seems to be a “lack of clarity” on the subject. In the suo-moto notice, Chief Justice Bandial said

that the Supreme Court bench would consider the questions as: Who has the constitutional responsibility and authority for appointing the date for the holding of a general election to a provincial assembly, upon its dissolution in the various situations envisaged by and under the Constitution?

How and when is this constitutional responsibility to be discharged? What are the constitutional responsibilities and duties of the federation and the province regarding the holding of the general election?

In his order, the Chief Justice observed that there was, to put it shortly, a lack of clarity on a matter of high constitutional importance. More than one month has now elapsed since the dissolution of the provincial assemblies and it seems prima facie that even the matter of appointing the date of general elections which was a first step towards the holding of the elections, has still not been

resolved, the judge remarked.

The Khyber-Pakhtunkhwa and Punjab assemblies where the Imran-led party had its governments, were dissolved on January 14 and January 18 respectively, in an attempt to pave the way for snap polls. President Dr. Arif Alvi had also urged the Election Commission of Pakistan on February 8 to “immediately announce” the date for elections in Punjab and KP and put an end to “dangerous speculative propaganda” on both the provincial assembly and general elections. However, the governors of the two provinces refrained from giving any date for the elections on several pretexts.