SCBA moves SC for announcing date for elections

ISLAMABAD: The Supreme Court Bar Association (SCBA) on Wednesday requested the Supreme Court to direct the Election Commission of Pakistan (ECP) to announce the date for conduct of elections within the time period stipulated under Article 224(2) of the Constitution i.e. 90 days from the date of dissolution of National and provincial assemblies.

SCBA President Abid S Zubairi filed a petition in the apex court under Article 184(3) of the Constitution, praying the court to declare the Council of Common Interests (CCI) decision of August 5 and subsequent notification by the federation as blatantly illegal, in violation of articles 4, 5, 6, 9, 17, 51, 153, 154 and 224 of the Constitution as well as SC judgments, and set it aside. He has made the Federation of Pakistan through the Cabinet Division secretary, CCI through its secretary, provincial chief secretaries and ECP through the chief election commissioner as respondents.

The petitioner further prayed to the apex court to declare that the CCI was not properly constituted during its meeting on 05.08.2023, and the forum was coram non judice, without jurisdiction, and, therefore, all decisions taken pursuant to the meeting on 05.08.2023 are liable to be set aside.

The SCBA further prayed the apex court to declare that the Punjab and KP caretaker chief ministers had no statutory or constitutional right to participate in the CCI meeting on Aug 5 as they along with their cabinet are continuing illegally in office.

Similarly, the petitioner prayed to the apex court to declare that Article 224(2) is part of the salient feature of the Constitution, and Article 51(5) must yield to the mandatory timeline provided under Article 224(2).

The petitioner also prayed the court to declare that the ECPs primary responsibility 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 SCBA president questioned as to whether the impugned decision of Aug 5 notified on Aug 7 is ultra vires article(s) 153 & 154 of the Constitution, its basic structure and violative of the Election Act 2017 and Rule of Procedure of Council of Common Interests 2010.

The petitioner submitted that the seat allocation for the National Assembly provided under Article 51(1) and (3) is based on the previous census i.e. population census of 2017, hence the same cannot be considered ‘seat allocation’ on the basis of population in accordance with the last preceding census officially published i.e. impugned decision.

It is therefore submitted that even if the impugned decision is held to be valid, no seats have been allocated as per the impugned decision, and, therefore, it is impossible to implement the impugned decision for the upcoming general elections for the National Assembly.

It further submitted that the outgoing National Assembly failed to adhere to Article 51 (5) and the ECP cannot initiate the process of delimitation under the Election Act 2017 as well as Rule(s) 7 and 8 of the Election Rules 2017 as there is no seat allocation based on the impugned decision as delimitation of constituencies of the National Assembly can only be carried out after allocation of seats on the basis of the last preceding census. As a result of the foregoing, since no seats have been allocated on the basis of the impugned decision, the same cannot be implemented for the upcoming general election for the National Assembly, the petitioner contended, adding that the Punjab and KP assemblies were dissolved on 14.01.2023 and 18.01.2023 respectively and the elections were required to be held within the Constitutional timeframe of 90 days.

Since, these assemblies were dissolved prior to the issuance of impugned decision and impugned notification, the same are inapplicable to election to these assemblies and the caretaker setup in both provinces is illegal after the end of the 90 days mandatory period, the petitioner maintained.

He submitted that Section 17(1) & (2) of the Elections Act 2017 provide that the ECP shall delimit constituencies for elections to the National Assembly and provincial assemblies after every census officially published and the said section does not refer to seat allocation.

Insofar as the National Assembly is concerned, the petitioner contended that the said provisions are contradictory to Article 51(5) of the Constitution, as seat allocation must follow census.

In any event, the provisions of the Election Act 2017 insofar as they violate the 90-day mandatory time limit under Article 224(2) of the Constitution must yield to the 90 day timeframe, he said.

The SCBA contended that it has been claimed that even though a new census has been notified and population has increased, there is no need for a fresh seat allocation and no constitutional amendment is required to be made in Article 51 (1) and (3) of the Constitution.

“It has been claimed that as a result, a fresh delimitation exercise must be carried out in accordance with the new census meaning thereby that elections to the National Assembly and provincial assemblies will not be able to take place within the mandatory time period of 90 days as mandated by Article 224(2) of the Constitution,” the petitioner added.

He submitted that the ECP secretary himself has stated that it requires around four months to complete the fresh delimitation exercise and only then can the election programme (which requires a minimum of 54 days) be published.

“Similar statement was issued by the outgoing law minister that four months would be required to draw new constituency boundaries,” he added.

The petitioner recalled that various officials have also stated that as a result general elections would not be held within the period of 90 days, which is prescribed by the Constitution.

The SCBA president submitted that if the delimitation exercise is initiated, it would normally require at least 4 months, as per Section(s)14, 21 and 22 of the Election Act 2017 and once such exercise is completed, an election programme would be published under Section 57 (1) of the Election Act 2017, requiring a further minimum period of 54 days.

“Accordingly, in case the impugned decision 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,” the petitioner contended, adding that no delimilation is required or necessitated and the 90-day time limit for holding elections will take precedence.