Chief Justice of Pakistan (CJP) Qazi Faez Isa on Thursday directed the Election Commission of Pakistan (ECP) to confer with President Arif Alvi on the poll date after the electoral body informed the Supreme Court that elections would be held on February 11.
The top judge also instructed the ECP to appear before the apex court tomorrow (Friday) with a final election date after consultation with Alvi.
The order was issued by a three-judge bench comprising top judge, Justice Amin-ud-Din Khan and Justice Athar Minallah on a set of petitions calling for holding elections within 90 days after the dissolution of the National Assembly and the provincial legislatures.
During today’s hearing, the CJP sought a clear stance from the electoral body on polls to which the ECP lawyer said there was a 54-day schedule after the delimitation process. “All arrangements including the drawing of constituencies will be completed by Jan 29,” Sajeel Swati said, adding that the final list of constituencies will be published on Dec 5.
He told the court that the electoral body had been looking to hold polls on a Sunday for the ease of the public. “Hence we decided that elections will be held on Feb 11, which is the second Sunday,” the lawyer added.
CJP Isa asked the ECP if President Arif Alvi was taken on board in the matter to which Swati said “we are not bound to take the president on board”.
This drew the chief justice’s ire. “Both the president and ECP are Pakistanis. Why is the ECP hesitant to consult with the president?” he asked and then directed the electoral body to discuss the matter with Alvi today.
After a half-hour recess in the hearing, Swati told the SC that the ECP would be consulting with the president today. “Knock his door even if he doesn’t call you,” Justice Isa said and then instructed Attorney General for Pakistan (AGP) Mansoor Usman Awan to stay on board during the consultation.
Subsequently, the CJP, while dictating the order of the proceedings in the case, said that the election date given would have to be implemented. “SC wants polls to be held without any arguments,” the top judge said, adding that the court only wanted a solution to the issue and didn’t want to get stuck in any technicalities.
Later, Secretary Omar Hamid Khan confirmed to Geo News that the consultation with the president will be taking place “shortly”.
‘Constitutional and legal decision’
Speaking to DawnNewsTV following the development, former ECP secretary Kanwar Dilshad said: “The ECP will complete its delimitations by Nov 30 and it’s possible that the schedule will be issued by mid-December.”
“This is a very good, constitutional and legal decision.”
When asked whether this can be considered the definitive date, he said: “ECP is bound to follow the guidelines of the SC. It was a major decision to announce the date to the court and it would be impossible to walk back from it now.”
“Feb 11 is a Sunday and the weather will be better. Some political parties have raised concerns over the snow and fog. So by the first week of Feb, most of it dissipates,” Dilshad added.
He added that after the Feb 11 polls, Senate elections will likely be held on March 5-6. “And by my estimates, the president will be elected after March 15-16,” the former secretary said.
Meanwhile, PPP’s Shazia Marri termed today’s announcement a “victory of democracy, a victory of the Constitution”, saying that “the PPP is the only party that has been demanding an election date.
“As far as I’m concerned, this isn’t an announcement — it emerged during court questioning. I urge the ECP to announce the date properly,” she added.
Today’s hearing
At the outset of the hearing today, PPP lawyer Farooq H. Naek appeared in the apex court and requested to become a respondent in the case. He was given a green light from the judges after PTI’s Barrister Ali Zafar said he had no objections to the request.
Zafar then began presenting his arguments and contended that polls should be held within 90 days. However, CJP Isa said, “Your request for polls within 90 days has now become ineffective.”
The PTI lawyer insisted that his argument was connected with a fundamental right, to which Justice Isa asked if the former just wanted elections now. Zafar replied in the affirmative.
“Will anyone oppose it?” the chief justice asked. In his reply, the PTI counsel said no. The CJP then asked Attorney General for Pakistan Mansoor Usman Awan if he had any objections to polls, to which the latter also replied in the negative.
Continuing his arguments, Zafar said Articles 58 (Dissolution of the National Assembly) and 224 (Time of election and by-election) could be read. “Without elections, neither can the Parliament run nor can laws be formed,” he contended.
He went on to say that there was a difference between giving a schedule for elections and announcing the poll date, adding that giving the election date was also mentioned in the Constitution.
“The law ministry believes that the president cannot give a date for polls,” Zafar stated. He highlighted that as per the 90-day deadline, elections should be held on Nov 7.
It must be noted President Dr Arif Alvi had written a letter to Chief Election Commissioner (CEC) Sikandar Sultan Raja on September 13 wherein he proposed that elections be held by November 6.
However, the Ministry of Law and Justice had Alvi had later informed Alvi that the powers to announce the poll date rested with the ECP, not the president.
During the hearing today, Justice Minallah asked why it took the president so long to write the letter to the ECP. On the other hand, the chief justice noted that the text of the said letter was “vague”.
“Did the president approach us for an opinion [on the matter] from the Supreme Court?” CJP Isa asked, to which Zafar said this was not the case.
At one point, the top judge asked the PTI counsel if he was trying to say that the president did not fulfil his constitutional responsibility. “The assembly was dissolved on Aug 9 but the president wrote the letter in September,” he said.
Meanwhile, Justice Minallah said, “The command of the Constitution is very clear that the president had to give the date [for elections], there is no disagreement in it.”
“Whoever wants to disagree can continue doing so,” Justice Isa stated, warning that the court could take a judicial notice as well. He also said that the letter could not be written on the “last day”.
For his part, Zafar said that in his opinion the president had fulfilled the responsibility.
Here, Justice Minallah said there wouldn’t have been any objections if the president had given the election date on the day the National Assembly was dissolved.
“What do you want from us now? Do you want us to direct the president to give a date? The president says he took advice from so and so. Can this court now issue a writ against the President?” CJP Isa asked.
He pointed out that machinery was involved in conducting polls. “Can the Supreme Court give the date for elections?” the chief justice asked.
Justice Minallah said that Article 98 of the Constitution was very clear on the court’s role in the matter. The said law pertains to the conferring of functions on subordinate authorities.
“Did the ECP ever say that the president should give the election date?” the judge further asked.
Zafar replied that the electoral body had said that the authority to give the poll date lay with the ECP. He added that there was a need to look at the SC’s role in the matter.
“Can we go against the president and give a date for polls ourselves?” Justice Isa asked, highlighting that the Constitution gives the apex court the authority to do so.
The PTI counsel said such an action had been taken before but Justice Minallah noted that the question currently under discussion was different.
The CJP said that holding elections was good and “not a problem”. Addressing the PTI lawyer, the chief justice said: “Your leader is also the leader of the president. Why wasn’t the president told to announce a date for elections?”
Justice Isa also noted that the president had only mentioned the date in his letter that fell after the constitutionally stipulated 90-day period ended.
At one point during the hearing, Justice Khan said that Zafar’s argument actually was that the president had deviated from the Constitution.
“Prima facie the president, ECP and government are all responsible,” Justice Minallah said. “The question now is what will be the result of this,” he noted, adding that elections must be held on time.
The judge further said that every day after the prescribed 90-day period to hold polls “is a violation of the Constitution”.
The petitions
SCBA chief Abid Zuberi, through his petition, had pleaded with the apex court to suspend the operation of a decision taken by the Council of Common Interests (CCI) on Aug 5 since the body did not meet the legal requirement of proper composition when it met that day.
He said the ECP’s primary responsibility was to hold elections within 90 days from the date of dissolution of the assemblies — a mandatory period which cannot be extended on any ground, including delimitation of constituencies.
Meanwhile, the PTI’s application sought direction from President Dr Arif Alvi to announce a date for holding elections within 90 days of the dissolution of the National Assembly.
It also requested the apex court to order the ECP to issue a schedule accordingly, besides the governors of all four provinces be directed to announce the date of elections within 90 days of the dissolution of the respective assemblies, or in accordance with the SC judgement in the Punjab Assembly election case.
Election delay
The Election Commission of Pakistan (ECP) had earlier ruled out polls this year citing the need for fresh delimitation of constituencies.
Since the National Assembly was dissolved three days before the end of its constitutional term, Article 224 of the Constitution mandates that elections be held within 90 days of the dissolution of the assembly by November 7.
But at the same time, Section 17(2) of the Elections Act states that “the commission shall delimit constituencies after every census is officially published.”
Last month, the commission announced that elections would be held in January 2024 but stopped short of announcing a date.
The decision has garnered mixed reactions from political parties. The JUI-F has opposed the timing of polls due to “weather conditions”, while the PML-N threw weight behind the ECP.
The PPP and PTI, on the other hand, have called for the immediate announcement of the election date and assurance of a level playing field. Meanwhile, the caretaker government has expressed hope that the date for elections would be announced soon.
More to follow
