Apex court orders polls in Punjab, KP in 90 days: Split SC ruling sparks new debate in country

ISLAMABAD/PESHAWAR: The Supreme Court on Wednesday ordered to hold elections in the provinces of Punjab and Khyber Pakhtunkhwa (KP) within 90 days and directed all the executive authorities in the Federation and the provinces to assist the Election Commission of Pakistan (ECP) in the discharge of its functions.

A five-member larger bench of the apex court, headed by Chief Justice Umar Ata Bandial and comprising Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Jamal Khan Mandokhel and Justice Muhammad Ali Mazhar, announced the reserved verdict with 3-2 on the suo motu case and two petitions on the announcement of the date for elections of Punjab and KP assemblies.

The court declared the order of the president dated 20.02.2023 with regard to the Punjab Assembly as constitutionally competent but termed the order pertaining to the KP Assembly constitutionally invalid, setting it aside it.

The court held that it was the constitutional responsibility of the KP governor to give a date for the election.

Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhel, while dissenting with the majority judgment, held that the suo motu proceedings in the facts and circumstances of the case were wholly unjustified in the mode and manner they were taken up under Article 184(3) of the Constitution, besides being initiated with undue haste.

The majority verdict given by CJP Bandial, Justice Munib Akhtar and Justice Muhammad Ali Mazhar held that parliamentary democracy is one of the salient features of the Constitution.

The court held that there can be no parliamentary democracy without Parliament or the provincial assemblies 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. Elections, and the periodic holding of elections, therefore, underpin the very fabric of the Constitution.

“They are a sine qua non for parliamentary democracy, and ensure that the sacred trust of sovereignty entrusted to the people of Pakistan is always in the hands of their chosen representatives,” the court held.

The court held that this duty was in addition to, and applies independently of, the duty cast under Article 220 on “all executive authorities in the Federation and in the provinces to assist the commissioner and the election commission in the discharge of his or their functions.”

“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,” says the verdict. The court further held that it was the duty of provincial governments, acting under the caretaker cabinets, to proactively provide all aid and assistance as may be required by the ECP.

“Since the general election on a dissolution of a provincial assembly has to be held within a time period stipulated by the Constitution itself, which is a constitutional imperative, the president or, as the case may be, 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 court held that the ECP 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.

“It follows from the foregoing that in relation to the dissolution of the Punjab Assembly, the constitutional responsibility for appointing a date for the general election that must follow was to be discharged by the president,” the court ruled.

However, in relation to the dissolution of the KP Assembly, the court held that the constitutional responsibility for appointing a date for the general election that must follow was to be discharged by the governor. The court ruled that the KP governor’s act of not appointing a date for the election was in breach of his constitutional responsibility.

The court held that in ordinary circumstances, the general election to the Punjab Assembly ought to be held on 09.04.2023, the date announced by the president in terms of his order of 20.02.2023.

“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,” says the verdict.

The court noted that the ECP, possibly on account of a misunderstanding of the law, 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,” the court ruled, adding that if such a course is not available, then the ECP must in like manner propose a date for the holding of the poll that deviates to the barest minimum from the 90 days deadline.

After consultation with the ECP, the court held, the president will announce a date for the holding of the general election to the Punjab Assembly.

Similarly, the court directed that the KP governor must, after consultation with the ECP, appoint a date for the holding of the general election to the KP Assembly.

The court ruled that it was the constitutional duty of the Federation, in terms of Clause (3) of Article 148, “to ensure that the government of every province is carried on in accordance with the provisions of the Constitution.

“There can be no doubt that this duty includes ensuring that a general election to the assembly of every province is held, and enabled to be held, in a timely manner within the period set out in the Constitution.”

“The duty cast upon the authorities as set out in Section 50 of the 2017 Act must also be discharged forthwith and proactively,” said the verdict.

The verdict noted that while the holding of general elections had different aspects and requirements, one was the time-frame or period in which such elections were to be held, adding that the Constitution envisaged two such periods, 60 and 90 days respectively.

In relation to a provincial assembly, the court held that the first period applies when the assembly dissolves on the expiration of its term under Article 107, and the second period is prescribed when it is sooner dissolved under Article 112.

The court noted that time periods so set down in Article 224(1) and (2) respectively are constitutional imperatives that command complete fidelity.

“We are here concerned with the dissolution of two provincial assemblies before the expiry of their terms and therefore to the holding of general elections in relation to each within 90 days,” the court observed.

The court noted that the then chief ministers tendered advice to their respective governors under Article 112(1) of the Constitution to dissolve the assembly.

“In the case of the Punjab province the governor chose not to act on the said advice so that the assembly stood dissolved on the expiry of 48 hours, on the date just mentioned,” said the verdict, adding that in the case of the KP province, the governor did act on the advice and made an order dissolving the assembly, on 18.01.2023.

The three questions which the apex court considered with the assistance of counsel for the various parties and law officers are:

1. 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?

2. How and when is this constitutional responsibility to be discharged?

3. What are the constitutional responsibilities and duties of the Federation and the province with regard to the holding of the general election?

The Constitution envisages three situations for the dissolution of a provincial assembly.

“The first situation is set out in clause (2) of Article 112. This envisages the dissolution of the assembly by 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.

“The second situation is set out in clause (1) of Article 112, when the chief minister advises dissolution. This situation can be divided into two sub-categories, which are as follows:

“a. The first is where the governor acts on the advice tendered and makes an order dissolving the assembly. Here, the assembly dissolves immediately on the making of the order.

“b. The second sub-category is where the governor does not make an order of dissolution on the advice tendered. Here, the assembly stands dissolved on the expiry of forty-eight hours from the tendering of the advice by the chief minister (i.e., by the efflux of time), and that does not require an order of the governor.

“The third situation is set out in Article 107. This provides that unless an assembly is sooner dissolved (i.e. in terms of either of the two preceding situations), it stands dissolved after a term of five years.

“Here, the governor has no role at all; the assembly dissolves by the efflux of time,” said the verdict, adding that Article 105(3)(a) provides that where the governor dissolves the assembly he shall appoint a date for the holding of a general election thereto, being a date not later than 90 days from the date of the dissolution.

The court held that the Elections Act 2017 had been enacted by Parliament in exercise of its legislative competence under the Constitution.

The court held that the Act applies to both the National and the provincial assemblies. Section 57(1) thereof provides that the President shall “announce the date or dates of the general elections after consultation with the Commission.”

In situations where the assembly is not dissolved by an order of the governor, the constitutional responsibility of appointing a date for the general election is to be discharged by the president as provided in terms of S. 57(1) of the 2017 Act, said the court.

Meanwhile, following the Supreme Court orders for holding elections in Punjab and Khyber Pakhtunkhwa, KP Governor Ghulam Ali Wednesday said he will contact the ECP for consultations.“If the Election Commission does not contact me, then I will contact the body myself,” he was quoted as saying in his statement after the SC verdict in the Punjab, KP election date case.

Ghulam Ali said he will follow the written decision of the Supreme Court. “There is no other option, whatever the circumstances, I will comply with the decision of the SC.”

He said, “It is on record that I consulted two or three times for the election date. Now it is necessary that the president and I consult each other.”