The Supreme Court Bar Association (SCBA) filed a plea in the apex court on Wednesday, requesting it to direct the Election Commission of Pakistan (ECP) to announce a date for holding the general elections within the constitutionally mandated period of 90 days following the dissolution of the National Assembly on August 9. The plea also sought the suspension of the approval of 2023 census results by the Council of Common Interests (CCI) on August 5, following which a delay in polls seems all but certain.
“This honourable court may be pleased to suspend the operation of the impugned decision dated August 5, 2023 issued by the respondent no.2 (CCI) and direct the respondent no.7 (ECP) to forthwith announce a date of election to the National and provincial assemblies as per Article 224(2) of the Constitution, 1973 during the pendency of the instant petition,” the plea read.
According to Article 224 of the Constitution, “A general election to the National Assembly or a provincial assembly shall be held within a period of sixty days immediately following the day on which the term of the assembly is due to expire unless the assembly has been sooner dissolved”. In case of early dissolution, the ECP is bound to hold the general elections within a period of 90 days after the dissolution As the National Assembly was dissolved this month three days before the end of its term, the elections are supposed to be held by November 9. However, after the approval and notification of the latest census, polls being pushed beyond this seems likely. In its petition filed in the Supreme Court, the SCBA argued that the “CCI decision on Aug 5 and its subsequent notification dated Aug 7 whereby the digital census of 2023 was unanimously approved by the CCI which included two caretaker chief ministers is in violation of the Constitution and CCI Rules, 2010”.
It further said the “delayed approval” of the 2023 digital census less than a week before the dissolution of the National Assembly and two provincial assemblies had created a “constitutional dilemma”, which was required to be resolved by the Supreme Court.
“The holding of elections within a period of 90 days of dissolution of assemblies is a salient feature of the Constitution and any delay in the conduct of general elections beyond the mandatory period of 90 days as mandated by Article 224(2) of the Constitution, 1973 will be in blatant violation of Articles 4, 5, 6, 9, 17, 51, 106 and 224 of the Constitution. “Any delay in the conduct of elections to the National Assembly and provincial assemblies would amount to subversion of the Constitution and violation of the principles of democracy and rule of law which form the foundation, salient features and basic structure of the Constitution of Pakistan,” the lawyer’s body said. The SCBA noted that the reconstitution of the CCI occurred on May 5, 2023, as per Article 153(1) of the Constitution following a change in the government within the National Assembly and the Punjab Assembly.
But after the dissolution of the provincial assemblies of Punjab and Khyber Pakhtunkhwa in January 2023, the CCI was not reconstituted by the president, the plea said.
The petition added that the then-prime minister had convened a CCI meeting on May 8 even when it was not reconstituted.
It highlighted that according to the Constitution and the Election Act of 2017, the essential role of a caretaker government was to conduct elections in compliance with the law, contending that the caretaker chief ministers of Punjab and KP, lacking proper election, were ineligible to participate in the CCI meeting.
Moreover, the SCBA said “In case the impugned decision [of the CCI] is sustained and or the fresh delimitation exercise is initiated, the general elections most likely cannot be held within 90 days as mandated by the Constitution, 1973. “However, it is submitted that no delimitation is required or necessitated and the 90-day time limit for holding elections will take precedence.”
The SCBA termed the approval of the digital census by the CCI “blatantly illegal” and argued that the “entire exercise is being conducted to delay the constitutionally mandated period for holding the elections”.
“It is glaringly obvious that if the impugned decision dated August 5 and the subsequent notification dated August 7 are not set aside and elections are carried out on the basis of the new census, Pakistan will be faced with yet another constitutional crisis.
“The impugned decision is a grave threat to democracy, rule of law, will only serve to disenfranchise the Pakistani nation and will invariably result in the delay in the general elections against the provisions of Article 224 (2),” the plea read. Furthermore, it sought the court’s directive acknowledging the inadequate constitution of the forum during its August 5 session, with a plea to nullify the decisions made during that meeting.
“The Supreme Court must declare that the primary responsibility of the ECP is to hold general elections within 90 days from the date of dissolution of the assemblies and such mandatory period of 90 days cannot be extended on any ground inter-alia including delimitation of constituencies,” the plea added.
Meanwhile, the Supreme Court ordered the Lahore High Court (LHC) to decide on the intra-court appeal against the interim bail decision of PTI President Parvez Elahi by August 21. A three-member bench headed by Justice Ijazul Ahsan heard the case.
The additional advocate general appeared on behalf of the Punjab government and said that the intra-court appeal against the decision of the single-member bench of the LHC is being heard in the high court.
Justice Ahsan however questioned, “How is your intra-court appeal admissible at the high court?”
The lawyer responded saying that on August 21, a two-member bench of the LHC will hear the issue of admissibility of the application. “If the court wishes, it may issue a directive that the issue of admissibility be decided on August 21,” he added.
Justice Jamal Khan Mandokhail remarked that litigating against each other is not a good precedent and instead urged the concerned parties to “sit together and resolve the issue through consensus”.
Elahi’s lawyer agreed with the suggestion expressing frustration over his client being released and rearrested repeatedly. Justice Mandokhail questioned that “If a person is appearing himself to face the charges, why is he being arrested again and again? I don’t know what the government wants to achieve by arresting the same accused repeatedly.”
On the other hand, the Punjab government’s lawyer argued that the LHC had no jurisdiction to take notice of the matter on its own.
Justice Mandokhail responded by pointing out the irony in how the government felt “it has the right to file cases upon cases on its own but the court does not have the right to take notice on its own”.
Justice Ahsan also remarked that the case concerned the protection of an individual’s freedom. “Taking away the freedom of a citizen is unconstitutional, taking away freedom even for a minute is a violation of the Constitution.” Later, the SC issued directives to the LHC to decide the matter by August 21.
