While the ongoing tussle between parliament and the judiciary is likely to drag on beyond Eid, legal and constitutional experts continue to question the Supreme Court’s April 4 ruling for exclusively focusing on elections to the Punjab Assembly and placing the issue of polls in Khyber Pakhtunkhwa ‘on a back burner’.

The two assemblies were dissolved in a similar manner just four days apart — Punjab on January 14 and KP on January 18 — but the apex court adopted different approaches in the two seemingly identical cases.

While it apparently made ‘all-out efforts’ to hold polls in Punjab as early as possible, it allowed parties to take the case for KP elections to the “appropriate” forums, and the matter is currently before the Peshawar High Court.

This apparent dichotomy in the court’s conduct doesn’t sit right with many in the legal fraternity.

Legal experts see legitimate concerns behind govt demand for elections in one go, say 90-day deadline ‘not rigid’

Senior lawyer Akhtar Hussain, who represents the Pakistan Bar Council (PBC) on the Judicial Commission of Pakistan (JCP), says the apex court has been criticised for focusing only on elections to the Punjab Assembly and asking petitioners to approach “any forum” on the identical issue in KP.

There should have been a single order for both provinces, but the apex court bifurcated the matter of KP polls, strengthening the impression it was only interested in holding elections in Punjab, said Mr Hussain.

Former Supreme Court Bar Association president Yasin Azad termed it constitutionally incorrect to adjudicate on elections to the Punjab Assembly and ignore KP.

Mr Azad questioned whether Article 224 of the Constitution — which stipulated the 90-day deadline — did not apply to KP and asked whether the apex court had no objection to October 8 as the date for polls in that province.

“The Supreme Court is also questioning the tenure of caretaker government in Punjab alone and its entire focus is to hold early elections in the largest province of the country,” he observed.

Former Sindh Bar Council vice-chairman Haider Imam Rizvi assailed the apex court’s decision to make no observations regarding elections in KP, terming it “contrary to the provisions of law”.

90-day deadline ‘not rigid’

The 90-day deadline for polls to the Punjab and KP assemblies expired on April 14 and April 18, respectively.

On this, Mr Hussain was of the view that the deadline could be extended under special and unavoidable circumstances.

Mr Azad also concurred, stating that the deadline can be extended under unavoidable circumstances. as provided in Article 254, and a precedent in this regard was set when the 1988 general elections were delayed.

Article 254 states that if any action required by the Constitution to be done within a particular period was not done in that time, it won’t render the action illegal or invalid for the sole reason of tardiness.

But while the constitutional deadline for polls may have lapsed, Mr Rizvi said that according to articles 232 and 234 — which deal with proclamation of emergency and governor’s rule — elections can also be delayed under an emergency or unavoidable circumstances.

Before discussing the rigidity of the 90-day deadline, the question of dissolution needs to be addressed first, he said.

“Under Article 107 of the Constitution, the duration of an assembly is five years and its premature dissolution has to be fully justified through definite reasons as provided in the Constitution,” Mr Rizvi said.

Commenting on the push to remove caretaker governments following the expiry of their stipulated tenure, Mr Azad noted that the Constitution was silent on the issue.

He attributed the ongoing crisis to the apex court’s interpretation of Article 63-A.

After the 18th Amendment, Mr Azad said, issues related to the provinces must be decided by the respective high courts and the apex court may not use its extraordinary powers under Article 284(3) to intervene in provincial issues.

He said a case for elections to Punjab Assembly was already pending before the Lahore High Court when the chief justice took the suo-motu notice.

‘Legitimate concerns’ on scattered polls

Legal experts Dawn spoke to also lent some consideration to the ruling coalition’s firm stance of holding polls across the country on a single day.

Mr Hussain said that there was “some substance in the government’s arguments”, noting that the concept of caretaker governments was introduced in view of Pakistan’s history of unconstitutional rule.

He said it was aimed at providing a level playing field to all political parties and ensuring free and fair elections.“

If elections in Punjab were held before general elections, there would be an elected government in the province during the elections for the National Assembly which would “violate the constitutional concept” of a level-playing field, Mr Hussain added.

An apex court judge had also questioned how both assemblies were dissolved and whether the actions were constitutional or otherwise, he added.

For Mr Rizvi, not holding country-wide elections on a single day would “lead to another constitutional crisis” as the Constitution was clear the elections must be held under interim setups to ensure transparency.

Published in Dawn, April 22nd, 2023