Date of elections: SC can make room if parties unite in stance

ISLAMABAD: Chief Justice Umer Ata Bandial on Wednesday said that the apex court could make some room and change the date of elections if all the political parties evolve a consensus.

A three-member bench of the apex court, headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprising Justice Ijazul Ahsen and Justice Munib Akhtar, heard the petitions for highlighting alternate means of political dialogue for ending the impasse on the issue of holding general elections to the Punjab and Khyber Pakhtunkhwa provincial assemblies.

At the outset of the hearing, Attorney General (AG) Mansoor Awan told the court that Foreign Minister Bilawal Bhutto had met Prime Minister Mian Shehbaz Sharif the other day and all the ruling parties, apart from one, were willing to talk with the Pakistan Tehreek-e-Insaf (PTI).

The AG submitted that the matter could be hopefully resolved if the court gave more time. At this, the CJP appreciated the AG’s stance and said: “If the political parties come together, the court can make room for them and change the date of elections. If not, the elections will be conducted on May 14. This matter should not be prolonged.”

Later, the Supreme Court issued notices to all the political parties, including Jamaat-e-Islami, in connection with holding elections to Punjab and KP assemblies.

Kashif Khan and others had filed petitions in the apex court, making the Federation of Pakistan, Law and Justice Division through its secretary and others as respondents. Shah Khawar, advocate, counsel for one of the petitioners, argued before the court that for ensuring peaceful, honest, just and fair elections, there must be an understanding and mutual respect among the political parties that participate in the general elections. He contended that historically, holding of simultaneous elections to the National Assembly and four provincial assemblies had secured a more durable outcome than the staggered elections held in 1970 and 1977 as were being envisaged currently for the two provincial assemblies.

But the court order, said: “Prima facie, the submission made by the learned counsel appears to have substance because elections are contested in the political arena and these can be best conducted with the feedback and input of all electoral political forces in the country would contest in such elections. “However, the court considers that the alternative route proposed by the counsel cannot operate to negate or erase the date fixed by the court in its judgment dated 04.04.2023 for the holding of general elections to the Punjab Assembly which is in line with the dictates of the Constitution.”

The court observed that political dialogue must not be made a means for avoiding the imperative obligation under articles 112 and 224 of the Constitution of the Islamic Republic of Pakistan to hold a general election to a provincial assembly within 90 days of its dissolution. The court appreciated the initiative taken by the petitioner to propose the initiation of political dialogue as a means for settling a practical and feasible date on which general constitutional petition elections that satisfy the requirement of Article 218(3) of the Constitution, are held. The court issued notices to all the political parties for arranging their representation through their duly authorised and instructed senior office-bearers to appear in person before the court today (Thursday).

The court also issued notices to the Federation of Pakistan, Election Commission of Pakistan (ECP) and attorney general for today at 11am. The Supreme Court, meanwhile, declared the plea of the Ministry of Defence seeking the holding of general elections across the country simultaneously as non-maintainable. It directed the government to ensure the release of funds of Rs21 billion by April 27 to the Election Commission of Pakistan (ECP) for the holding of general elections to the Punjab and Khyber Pakhtunkhwa (KP) assemblies. The same three-member bench -- CJP Bandial, Justice Ijazul Ahsen and Justice Munib Akhtar -- heard the Ministry of Defence plea seeking elections across the country on the same date.

The Defence Ministry had submitted that the tenure of the National Assembly and legislature of two other provinces, Sindh and Balochistan, would end later this year and the federal government wanted the polls to take place then, not in May, as directed by the Supreme Court on April 4. The ministry had prayed to the apex court to recall its order passed on April 4, ordering for holding elections in Punjab on May 14. It had further prayed the court to issue directions for the general elections to the national and all provincial assemblies to be held together, upon completion of the term of the National and the other two Provincial Assemblies i.e. of Sindh and Balochistan. On Wednesday, the court also took up the pleas and reports submitted by the ECP, the compliance report filed by the State Bank of Pakistan as well as the Finance Division regarding funds for the elections. Later, the court issued a written order in the matter and held that it was pointed out to the attorney general that such an application could not be entertained and no relief granted as had been decided by final judgment. “In terms of the system of parliamentary democracy envisaged by the Constitution, the government of the day must command the confidence of the majority of the National Assembly at all times,” the order said.

Furthermore, the court held that given that the Office of the Prime Minister has primacy (who is declared by Article 91(1) to be the chief executive of the Federation), which also means that the prime minister must enjoy the confidence of the majority of the National Assembly at all times. “It follows from the foregoing (and this is an important constitutional convention) that the government of the day must be able to secure the passage of all financial measures that it submits before the National Assembly,” the court noted.

The court noted that this would be certainly true for a financial measure of constitutional importance, i.e. one that seeks the release of funds for the holding of general elections to two provincial assemblies.

“When viewed from this perspective, the rejection of the demand for funds has serious constitutional implications,” the order said, adding that one possibility was that the government had lost the confidence of the majority of the members of the National Assembly. The court, however, noted that the attorney general categorically stated that it was not the case. The court held that the federal cabinet and the prime minister at all times had the confidence of the majority of the National Assembly. “For present purposes, we accept this statement made by the learned attorney general,” said the order, adding that the other possibility was that the putative rejection of the demand for the funds was to be regarded as anomalous, and the resulting situation could be rapidly rectified. The court noted that the AG fully appreciated the serious constitutional consequences that would flow, was the first possibility to reflect the correct position.

“Furthermore, future to and from of this matter between the executive and legislative branches would not advance or serve any constitutional purpose,” said the order, adding that there would be a serious breach of constitutional duty and obligation. The order further noted that the orders of the court seek only to enforce and effectuate binding constitutional obligations. “A disobedience and defiance of the orders of the court can itself have serious consequences,” the court warned, directing the AG to draw the attention of the federal cabinet and the prime minister, so that the matter could be resolved at the earliest.

The court directed that appropriate remedial measures be taken in full measure not later than April 27 and Rs21 billion be provided immediately to the ECP for the holding of the general elections to the Punjab and KP assemblies. The court held that it was impermissible to reopen issues and questions that already stand finally decided, adding that the representation was not maintainable and disposed of accordingly.