Elections for KP & Punjab assemblies should be held within 90 days. SC. Pakistan Verdict also notes that KP governor breached ‘his constitutional responsibility’ by not announcing a date for the polls

Supreme Court in a split verdict rules that elections for KP & Punjab assemblies should be held within 90 days

Court rules that Dr. Arif Alvi’s decision applies for Punjab but is ‘invalid’ in the case of KP

Verdict also notes that KP governor breached ‘his constitutional responsibility’ by not announcing a date for the polls

Syed Mansoor Ali Shah & Justice Jamal Khan Mandokhail differ with majority decision

Both judges in dissenting note say suo motu proceedings initiated by CJP were ‘wholly unjustified’, besides being initiated with ‘undue haste’

ISLAMABAD ( Web News )

The Supreme Court of Pakistan, in a split verdict, ruled on Wednesday that elections for Khyber Pakhtunkhwa (KP) and Punjab assemblies should be held within 90 days. The apex court has issued short order consisting of 13 pages and detailed judgment will be issued later on.

The direction was given by the apex court in the suo motu notice verdict which was announced by Chief Justice of Pakistan Justice Umar Ata Bandial on Wednesday.

A five-member bench headed by CJP Bandial and comprising Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Jamal Khan Mandokhail and Justice Muhammad Ali Mazhar reserved the verdict after conducting hearings for two consecutive days — Monday till Tuesday.

In a three-two split decision the bench gave relief to the petitioners in the case, while two of the bench members objected to the admissibility of the pleas. Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail have dissented from the majority verdict.

In the verdict the apex court noted that there are “different aspects and requirements” for holding polls but ruled that one thing that was “absolutely crucial is the timeframe” for the polls. It added that Constitution envisages two periods for holding polls — 60 days in case the assembly is dissolved after its term is completed and 90 days in case the assembly is dissolved before the expiry of its term.

The verdict then stated that the bench had three questions before it. One was on the “constitutional responsibility and authority for appointing the date” for the elections in various situations. The other question before the bench was how and when the constitutional responsibility is discharged.

The last question was on what constitutional responsibilities and duties the federation and the province have on general election.

The verdict then explained that there are three situations in which an assembly is dissolved and the role of the governor.

As per the court the first situation is set out in clause (2) of Article 112. It added in such a situation the dissolution of the assembly is done via an order made by the governor at his discretion, subject to the previous approval of the president and fulfillment of the conditions set out therein.

“In this situation, the Assembly cannot, and does not, dissolve without an order being made by the Governor, and dissolves immediately on the making of the order,” said the Supreme Court.

The Supreme Court said that the other situation is explained in the   clause (1) of Article 112 where the assembly is dissolved on the chief minister’s advice.

The court further said that such a situation “can be divided into two sub-categories”.

One sub-category was that governor dissolves the assembly on the CM’s advice. The other was the assembly getting dissolved automatically within 48 hours if the governor does not follow the CM’s advice.

As per the Supreme Court, the third situation for the dissolution of assembly is mentioned in Article 107 where the assembly is dissolved after the completion of its five-year term.

The verdict further stated that Article 105(3)(a) directs the governor to appoint a date for the election within 90 days if he dissolves the assembly.

The verdict also cited the Elections Act, 2017, and stated that Section 57(1) of the law allows the president to “announce the date or dates of the general elections after consultation with the commission” in case the governor does not dissolve the assembly.

On the president’s unilateral decision of announcing the verdict, the Supreme Court ruled that Dr. Arif Alvi’s decision applies for Punjab but is “invalid” in the case of Khyber Pakhtunkhwa.

The verdict also noted that KP governor breached “his constitutional responsibility” by not announcing a date for the polls.

The court noted that in “ordinary circumstances” the polls should have been held on April 9 as announced by the president.

“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 s. 57(1) of 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,” ruled the Supreme Court.

On elections in KP, the verdict directs that governor to announce a date for the polls after consulting the ECP.

The verdict also directed the federal government to ensure that the polls are carried out as per the Constitution.

“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,” said the verdict and ruled that the matters before the court “maintainable” and stand disposed of the petition. Subsequently, the court disposed of the matter.

Ahead of the verdict on Wednesday, Room No.1 of the court — where the much-anticipated decision was announced — was packed with journalists and lawyers. PTI’s Shireen Mazari and Fawad Chaudhry and Awami Muslim League Chief Sheikh Rashid Ahmed were also in attendance.

Meanwhile in a joint dissent note, Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail said that the suo motu proceedings initiated by the CJP were “wholly unjustified”, besides being initiated with “undue haste”.

The note stated 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 thus not maintainable as the same constitutional and legal issues seeking the same relief are pending and being deliberated upon by the respective provincial high courts in Lahore and Peshawar, without there being any inordinate delay in the conduct of the proceedings before them”.

“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, as a single Bench of the Lahore High Court has already decided the matter in favour of the petitioner before the said High Court vide judgment dated 10.02.2023 and the said judgment is still in the field.

“The intra-court appeals (ICAs) filed against the said judgment are pending before the Division Bench of the Lahore High Court (and none of the said petitioners has approached this Court under Article 185(3) of the Constitution),” it said.

The judges explained in their note that when a constitutional was pending before a high court, it should not be interfered with and should rather be supported to strengthen the autonomy of provincial courts.

They also maintained that there was no “inordinate delay in the proceedings pending before the high courts” — as said by the CJP in previous hearings — adding that the instant proceedings of the SC had delayed the matter in the high court.

“However, considering the importance of the matter we expect that the respective high courts shall decide the matters pending before them within three working days from today,” the note stated.

“We, therefore, agree with the orders dated Feb 23 passed by our learned brothers, Yahya Afridi and Athar Minallah, and dismiss the present constitution petitions and drop the suo motu proceedings,” the dissent note concluded.

The judges also added a footnote mentioning the Feb 23 order of the Supreme Court in which dissenting notes of Justice Athar Minallah and Justice Yahya Afridi were also included.

“Initially, a nine-member bench heard this matter. The aforementioned two Hon’ble Judges decided the matter by dismissing the said petitions. Later on, two other Hon’ble Judges disassociated themselves from the Bench for personal reasons and as the two aforementioned judges had dismissed the matter, the Bench was reconstituted into a five-member bench vide order dated 27.02.2023. The decisions of the aforementioned two Hon’ble Judges dated 23.2.2023 form part of the record of this case,” the footnote stated.