The Supreme Court (SC), in a 3-2 verdict, ruled on Wednesday that elections in Khyber Pakhtunkhwa and Punjab — both of which have been under caretaker governments since the provincial assemblies were dissolved in January — should be held within 90 days.

“Parliamentary democracy is a salient feature of the Constitution. There can be no parliamentary democracy without Parliament or the provincial assemblies,” the ruling said. “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”.

Key takeaways from the verdict

• In Punjab, because governor did not dissolve assembly, president’s April 9 date is ‘constitutionally competent’
• If polls can’t be held within 90 days, ECP must propose date that ‘deviates to the barest minimum’ from deadline
• After consultation with ECP, president will announce date for Punjab polls
• In KP, because governor acted on CM’s advice and dissolved assembly, he is bound to consult with ECP to announce date and president’s date is invalid
• ECP must be ‘proactively’ available to president or governor for consultation on dates

The majority verdict, given by Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Munib Akhtar and Justice Muhammad Ali Mazhar, was announced by the apex judge today.

Justice Jamal Khan Mandokhail and Justice Syed Mansoor Ali Shah — who were among the four judges who had written additional notes in the Feb 23 order — dissented with the ruling.

In the written verdict, a copy of which is available with Dawn.com, the top court held that in situations where a governor dissolved a provincial assembly, the constitutional responsibility of appointing a date for the election was to be discharged by the governor.

“In situations where the assembly is not dissolved by order of the governor, the constitutional responsibility of appointing a date for the general election that must follow is to be discharged by the president.”

The court stated that since elections after the dissolution of a provincial assembly were to be held within a stipulated period of time, the president or the governor “must discharge the constitutional responsibility of appointing a date for the said election swiftly and without any delay and within the shortest time possible”.

“The Election Commission must proactively be available to the president or the governor, and be prepared for such consultation as required for a date for the holding of general elections,” the order said.

It went on to say that regarding the dissolution of the Punjab Assembly, the constitutional responsibility for appointing a date for the general election was to be discharged by the president as the governor had refused to sign on the assembly dissolution summary.

But regarding the dissolution of the KP Assembly, the verdict continued, the constitutional responsibility for appointing a date for elections was to be discharged by the governor.

“It further follows that the order of the president dated Feb 20 is constitutionally competent and it applies to the Punjab Assembly, but the same is constitutionally invalid insofar as it applies to the KP Assembly and is therefore hereby set aside.

“It also follows that the governor of KP, in as much 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 highlighted.

It further said that in ordinary circumstances, the general election in Punjab ought to be held on April 9 — the date given by the president — but because there were delays in the announcement of the poll date, it might not be possible for the province to meet the 90-day deadline.

“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, date to the president that is compliant with the deadline. After consultation with the ECP, the President shall announce a date for holding the general election to the Punjab Assembly.

“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,” the order said.

Meanwhile, the SC directed the KP governor to appoint a date for elections in the province after consulting the ECP.

The top court also instructed the federal government to “ensure that the government of every province is carried on in accordance with the provisions of the Constitution”.

“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,” it said.

Subsequently, the court disposed of the matter.

Ahead of the verdict today, 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 were also in attendance.

Dissent note by Justice Shah, Justice Mandokhail

In a joint dissent note, which is available with Dawn.com, Justice Shah and Justice 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 issue 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.

‘Positive and constructive decision’

Speaking on DawnNewsTV, legal expert Barrister Asad Rahim called the verdict “positive and constructive”.

He said the top court had paved the way out of a “constitutional crisis” that Pakistan was stuck in.

The expert stated that the confusion regarding the Punjab governor’s stance on refusing to give an election date because he had not approved the dissolution of the provincial assembly had also ended. “The Supreme Court has filed this vacuum.”

Talking about the president’s powers, Barrister Rahim said: “The distinction in this is that Article 57, being discussed by the court, is of the Election Act, 2017 — which comes under the Constitution.”

“In the light of the apex court’s decision, when there is such an impasse, the president can exercise such a power,” he added.

The law expert further noted that the court had still given the KP governor’s role a “central priority”, which meant that the “first authority to announce the election date is the governor”.

He went on to say that while the Punjab governor had not approved the assembly dissolution, the situation in KP was otherwise. Therefore, it was “declared that they [KP governor] had breached the Constitution”.

Responding to a question about another possible constitutional crisis, the legal expert believed that such a situation should not arise again.

He said the ECP had held back from pursuing its “basic aim of holding independent and fair elections” and “did not take a step forward even though the Lahore High Court had directed in its verdict to organise the elections”.

Barrister Rahim added that the reasons given previously by the ECP, pertaining to the law and order situation and financial crisis, were now “baseless”.

SC reserves verdict

After a day-long hearing on Tuesday, the bench closed proceedings at about 5:15pm for a short order, but then decided to reserve the verdict until today.

The court also asked political parties to consult their leaderships during a short break and come back with a consensus date for the elections, but PML-N counsel Mansoor Usman Awan told the court that consultation will take more time since the PDM coalition also has members in Balochistan, while the PML-N will also have to hold internal discussions as well as consult the PPP.

Attorney General for Pakistan Shehzad Ata Elahi contended that the power to fix the election date was vested in the ECP and if the commission had some evidence of any difficulty in holding the elections, it should not shy away from revealing the same. Justice Munib Akhtar observed that it seemed that the ECP was unaware of its constitutional responsibility to fix the election date and today they stand enlightened of their constitutional obligation.

The CJP pointed towards senior counsel Farooq H. Naek — who was representing PPP — and observed that nobody was doubting the bona fide of the government since they have reasons like terrorism or economic conditions, which the country was facing for the first time, but “we should at least decide which authority will ann­ounce the date to conduct elections in the provinces of Punjab and Khyber Pakhtunkhwa (KP)”.

The CJP emphasised that Arti­cle 254, which legalises any failure to comply with certain requirements within a stipulated period, did not give licence to anybody to overcome the constitutional obligation of holding the elections within 90 days since the elections have to be held even in eventualities like war or other calamities.

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

Naek argued that the PPP did not want the postponement of elections unnecessarily, but rather want to participate in the polls provided they were held in accordance with the law in conducive circumstances. However, the current economic crisis makes it a difficult possibility, he added.

He said April 9 election date fixed by President Arif Alvi without consultation with the prime minister was a nullity in the law and added the discretion, which the president could exercise, was implicit in the constitution.

About the suo motu proceedings under Article 184(3), the counsel reminded that a similar case was pending before the Lahore High Court (LHC) which had even given a direction to the Punjab governor to announce the date in consultation with the ECP.

In KP, the governor has the authority to announce the date for the elections but for Punjab, the statute was silent and therefore ECP had to announce the date, Naek argued. It was not the mandate of the political parties to fix a date for the elections, he added.

Justice Shah asks parties to ‘evolve consensus’

During Tuesday’s hearing, Justice Syed Mansoor Ali Shah observed that the solution will come provided the interest of Pakistan is made the central point. He asked the parties to sit together to evolve a consensus.

PTI leader Fawad Chaudhry pleaded before the court that the issue should not be given into the hands of the executive, since the issue would get out of control if the 90-day period was not adhered to.

The CJP regretted that Peshawar High Court (PHC) took three weeks in issuing notice to respondents whereas the LHC held two hearings and adjourned the matter.

On the contrary, the apex court started regular proceedings on Monday and is set to announce the verdict today. “We have accommodated this case because it concerns the enforcement of the Constitution,” he stressed. Farooq Naek however pleaded that the apex court should have issued directions to the high courts to wrap up the case as early as possible.

When Justice Bandial said the court rarely initiates suo motu cases, the counsel commented that the judicial activism started in 2007 was now turning into judicial restraint. “Nobody seems bothered despite the fact that the assembly was dissolved on Jan 14,” observed Justice Mandokhail.

Salman Akram Raja, the president’s counsel, argued that the president accepts that in the case of KP, he had no role in giving the date. The president is very concerned about his constitutional role and all he had done was follow the spirit of the Constitution but he was being attacked in the media for allegedly violating Article 6 (treason), the counsel regretted.

He added that even the cabinet had written a letter to the president stating that he had done something wrong that falls within the purview of Article The counsel said that the president had waited for the judgment of the high court and even invited the ECP. But when the commission refused to engage, then the president consulted his aides who advised him to play his constitutional role. The 90-day limit has to be taken seriously, the counsel argued.

Justice Mazhar wondered would the president wait for a couple of years if the PM did not render any advice to give a certain election date.

Suo motu notice

Last week, the top judge took suo motu notice of the delay in holding polls in Punjab and KP, saying that there appeared to be a “lack of clarity” on the matter.

In the notice, CJP Bandial said that the SC bench would consider the following questions:

• 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 with regard to the holding of the general election?

In his order, the CJP observed that there was, to put it shortly, a lack of clarity on a matter of high constitutional importance.

The issues raised require immediate consideration and resolution by the Supreme Court. The decision was taken after a note was presented to the CJP against the backdrop of a Feb 16 order by a two-judge bench asking the chief justice to invoke a suo motu initiative in this regard.

“Several provisions of the Constitution need to be considered, as also the relevant sections of the Elections Act 2017. In particular, the issues involve, prima facie, a consideration of Article 17 of the Constitution and enforcement of the fundamental right of political parties and the citizens who form the electorates in Punjab and Khyber Pakhtunkhwa to exercise their right to elect representatives of their choice to constitute fresh assemblies and the provincial cabinets,” the SC order said.

“This is necessary for governments in the two provinces to be carried on in accordance with the Constitution,” observed the CJP, adding that these matters involve the performance of constitutional obligations of great public importance apart from calling for faithful constitutional enforcement.

“There is a material development in the last few days,” the CJP noted, adding that it appeared that subsequent to certain correspondence initiated by President Arif Alvi with the ECP, the former had taken the position that it was he who had the authority and responsibility for appointing a date for the general elections, in terms as provided in Section 57(1) of the Elections Act.

The order said: “By an order made on Feb 20, the President had appointed April 9, 2023, to be the date for the holding of the general elections in Punjab as well as KP and had called upon ECP to fulfil its constitutional and statutory obligations in this regard.

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.

“Constitutional authorities appear to hold divergent and perhaps even conflicting, views on the issue, and thus several federal ministers appear to have contested the authority asserted by the president. Since ministers act under the constitutional rule of collective responsibility, it appears, prima facie, that this is the view taken by the federal cabinet as a whole.

“It is also to be noted that statements attributed to ECP have appeared in the public record to the effect that it was not being provided the requisite assistance and support, in particular by the provision of necessary funds, personnel and security, as would enable it to hold the general elections in accordance with the Constitution.”

The CJP observed that in the cases of Punjab and KP, the then chief ministers tendered advice to their respective governors under Article 112(1) of the Constitution to dissolve the assembly.

Punjab, KP election limbo

The Punjab and KP assemblies — where the PTI had governments — were dissolved on January 14 and January 18, respectively, in an attempt to pave the way for snap polls.

On Jan 24, the ECP wrote letters to the principal secretaries of Punjab and KP governors, suggesting elections in Punjab between April 9 and 13, and in KP between April 15 and 17.

At the same time, the PTI had on Jan 27 approached the LHC seeking orders for the Punjab governor to immediately announce a date for an election in the province following which the court had directed the ECP to immediately announce the date for elections after consultation with the governor.

Meanwhile, President Alvi had also urged the ECP on Feb 8 to “immediately announce” the date for polls in KP and Punjab and put an end to “dangerous speculative propaganda” on both the provincial assembly and general elections.

However, so far, the governors of the two provinces have refra­ined from providing any date for the polls on several pretexts.

On Feb 17, President Alvi had invited Chief Election Commissioner (CEC) Sikandar Sultan Raja for an urgent meeting regarding consultations on election dates but the ECP told him he had no role in the announcement of dates for general elections to provincial assemblies and the commission was aware of its constitutional obligation in this regard.

Subsequently, the president on Monday unilaterally announced April 9 as the date for holding general elections for the Punjab and KP assemblies.

The move drew sharp criticism from his political opponents, who accused him of acting like a PTI worker while the ECP said it would announce the poll schedule only after the “competent authority” fixes the date.