Elections delayed beyond 90 days –“The gravest violation of the Constitution”
On 22nd November 2023, Justice Minallah of the Supreme Court of Pakistan, in his comprehensive 41-page additional note, penned in connection with petitions seeking a date for the general elections, underscores that even a one-day delay in conducting general elections beyond the stipulated 90 days constitutes the most serious violation of the Constitution, resulting in the denial of constitutional rights to the people. Such a delay goes so far as to effectively suspend the Constitution, as it undermines its foundational principle—the exercise of powers and authority of the State through duly elected representatives.
Background
Two major provinces of Pakistan, Punjab and KPK were controlled by former Prime Minister Imran Khan’s Pakistan Tehreek-e-Insaf (PTI) party. In January, Imran Khan dissolved the two assemblies. According to Pakistan’s constitution, elections must have been held within 90 days:
Article 224(2) of the Constitution of Pakistan, elections should be held within 90 days of the dissolution of an Assembly - whether National or Provincial - and the results should be declared in a maximum of 14 days after the conclusion of polls.
In April 2023 Pakistan top court ordered polls in these two provinces within 90 days. Supreme Court said that elections for provincial assemblies in Punjab and Khyber Pakhtunkhwa must be held within three months.
“Parliamentary democracy is one of the salient features of the constitution. There can be no parliamentary democracy without parliament or the provincial assemblies. Elections, and the periodic holding of elections, therefore, underpin the very fabric of the constitution,” the court said in its order.
The PDM parties, along with the incumbent Caretaker governments, spared no effort in attempting to postpone the elections. When questioned about their actions, their responses were marked by the most unconventional and bewildering justifications, seemingly aimed at masking these unconstitutional maneuvers, and constructing a narrative to justify them.
Interior Minister Rana Sanaullah – PML (N)
On Supreme Court’s order to hold elections within 90 days in Punjab and KPK, Interior Minister Rana Sanaullah reiterated that Punjab polls won't happen on May 14,. He further said that if the elections are held in May 2023, no party would accept the elections. He defended himself by saying that no one including the army, judiciary and the election commission were ready to conduct elections in May. (Faisalabad - April 2023)
At another occasion he said:
“If the institutions, the ECP, and other responsible people believe holding elections is necessary they will do it, and if they think after May 1 another issue can start, then it’s possible they may postpone it.” (March 2023)
When asked if the year 2023 is the year of general elections, while talking on a private news Channel, Interior Minister Rana Sanaullah said "In a straightforward answer - no". When asked about the possibility of a caretaker set up being around for more than three months, Sanaullah said that this is not an anomaly. (August 2023)
Former Defence Minister Khwaja Asif – PML(N)
In a conversation with CNN's Becky Anderson, Defence Minister Khawaja Asif said that the 90 days deadline cannot be missed but "under some conditions, the election commission has the power to delay it". (August 2023)
Former Finance Minister Ishaq Dar – PML(N)
PML-N Senator Ishaq Dar asserted that the demand for holding general elections within 90 days of the National Assembly’s dissolution was “unconstitutional” after the approval of the census. (October 2023)
Former National Assembly Speaker Raja Pervaiz – PPP
Raja Pervaiz Ashraf said that the general elections cannot be held in 90 days after the 2023 census approval. (August 2023)
PPP Chairman - Asif Ali Zardari
Co-chairman of the Pakistan Peoples' Party (PPP), came to the defence of the Election Commission of Pakistan (ECP), asserting that a fresh delimitation exercise has become obligatory following the notification of the new census. He said that country is currently going through an economic crisis. We all should worry about the economy first instead of politics. (September 2023)
Former PM Shehbaz Sharif – PML(N)
On Supreme Court’s order to hold elections within 90 days in Punjab and KPK, under the leadership of Shehbaz Sharif the parliament passed a motion rejecting Supreme Court order for polls to proceed. Addressing the National Assembly afterward, Shehbaz Sharif said the court's latest decision amounted to a "murder of justice." (April 2023)
PDM PM, Shehbaz Sharif said that elections will be held only on the basis of the 2023 digital census, hinting towards a delay between eight months to one year.
“We have to hold the elections on the basis of the new census. When the census has been conducted, the polls should be held on its basis unless there is an obstacle that cannot be overcome.” he said during an interview. (August 2023)
PDM President – Maulana Fazlur Rahman
PDM President Maulana Fazlur Rehman rejected the apex court decision to hold elections in Punjab within 90 days, saying that the government was being asked to hold polls in 90 days although the “same Supreme Court had given Gen. Pervez Musharraf three years to hold polls.”
“Sometimes, in the eyes of the Supreme Court, holding polls in three years is a constitutional requirement and sometimes it gives authority to an individual to make amendments to the Constitution,” the PDM chief said. Rehman added that a decision in this regard would be made by the government after reviewing all relevant aspects, including the “law and order situation, weak national exchequer and price hike.” (March 2023)
Pakistan’s Parliament under PDM Government
The National Assembly passed a motion against the Supreme Court Order, “This house rejects the minority decision of the three-member bench and binds the prime minister and the cabinet not to implement the unconstitutional and unlawful decision,” legislator Khalid Magsi said while reading the motion. (April 2023)
Parliament adopted the resolution rejecting a Supreme Court order to hold snap elections for two provincial legislatures in the country. The house speaker said a majority of lawmakers had voted to reject the decision by the court’s three-member panel headed by the chief justice and to demand a full court panel consisting of all judges hear the case.
Election Commission of Pakistan (ECP)
After the Supreme Court’s Verdict, the Election Commission of Pakistan (ECP) expressed its inability to conduct general elections within three months, citing various legal hitches and procedural challenges as the reason.
They submitted report to the Supreme Court of Pakistan that neither the government provided funds nor security for the elections in Punjab.
After the National Assembly was dissolved, ECP decided to conduct a fresh delimitation of Constituencies on the basis of the new census, delaying the general elections which were scheduled to be held within the 90-day constitutional period since the dissolution of Parliament. The announcement by the Election Commission of Pakistan (ECP) came soon after an 18-member Cabinet of newly appointed caretaker Prime Minister Anwar-ul-Haq Kakar took the oath.
Imran Khan – Chairman PTI and Former PM Pakistan
Chairman PTI Imran Khan and his party members appeared to be the sole advocates for adhering to the constitutional provision of holding elections within the prescribed 90-day limit given in the Constitution of Pakistan. Imran Khan, on numerous occasions, emphatically reiterated how the PDM and the Caretaker governments had transgressed the constitution, unlawfully governing major provinces and depriving the people of their constitutional right to elect their representatives.
Imran Khan said, "Whether it's a 5 member SC bench or Full Bench, it makes no difference to us because all we want to know is if elections will be held within the 90 days' constitutional provision. Before we dissolved our 2 Prov assemblies, I consulted our top constitutional lawyers, all of whom were absolutely clear that the 90-day Constitutional provision on holding of elections was inviolable. Now Imported Govt of crooks, their handlers & a compromised ECP are making a complete mockery of Constitution. By cherry picking which Articles of Constitution they will abide by, they are threatening the very foundation of Pakistan, which is the Constitution & Rule of Law. So petrified are they of elections & so desperate to whitewash their convicted leaders that they are prepared to destroy the Constitution & any semblance of Rule of Law." (March 2023)
Election Delay Case
In November 2023, three-member bench of the apex court comprising Chief Justice of Pakistan Qazi Faez Isa, Justice Aminuddin Khan and Justice Minallah heard a set of petitions calling for holding elections within 90 days after the dissolution of the National Assembly and the provincial legislatures. Justice Athar made the following remarks in his additional note in a matter related to the case of election date.
Justice Athar Minallah’s Additional Note - General Election Case In Supreme Court
“The duty to ensure that the people of Pakistan are not deprived of their right to vote and they do not remain unrepresented for more than a ninety day period was that of the President, the Governors and the Commission.
The citizens were deprived of their most valuable constitutional rights. The Constitution also stood violated. Each day of delay in holding general elections after expiry of the ninety day mandatory constitutional period gives rise to a fresh cause of action.
In the case in hand the people of Pakistan, particularly the registered voters, have been deprived of the most fundamental right to participate in the governance of the State through chosen representatives and obviously the right to vote in accordance with law. They are being governed by unelected caretakers in violation of the Constitution and their fundamental rights.
The 125,626,390 registered voters are victims and the responsible authorities i.e the President, Governors and the Commission are accountable to them for causing injury and loss; depriving them of their legal rights.
The date of February 08, 2024 was appointed by the President and announced by the Commission without prejudice to and notwithstanding the consequences that they may have exposed themselves to on account of the violations of the Constitution and denial of rights to the people of Pakistan.
The violation of Article 224(2) and the resultant denial of the rights to the people of Pakistan is so grave and profound that it cannot be cured, condoned nor the acts are immune from being held to account.
The duty to appoint a date, not later than ninety days from the date of the dissolution is imposed upon the President (48(5)(a) ) and a corresponding duty to appoint a care-taker Cabinet (Article 48(5)(b) in accordance with the provisions of the Constitution.
It is noted that the offices of the President and the Governor are premised on the principle of neutrality and its incumbents ought to foresee that failing to perform their constitutional duties could lead to depriving the people of their most valuable rights.
In case of a constitutional impasse created either by the President or a Governor, regardless of whether it is politically motivated, deliberate or reckless disregard for the constitutional rights of the people, it becomes a duty of the Commission to proactively make the Constitution workable.
The importance of the Commission having been given the status of an institution created by the Constitution itself is emphasised by the framers in the expression 'shall be charged with the duty --- the holding of general elections to the National Assembly, Provincial Assemblies, and the local governments'.
The duty is not subject to appointing the date by the President or a Governor as the case may be. The duty also does not end with holding of the general elections. It is a continuing duty and subsists even after holding a general election because preparations have to be proactively made to hold the next general elections. The Commission is not merely charged with the duty to hold the general elections but to hold it in accordance with the command of the Constitution.
When the President or a Governor fail to perform their duties enshrined under the Constitution, which ought to be foreseen as infringing the rights of the people, the Commission cannot remain a silent spectator. In such an eventuality the Commission is charged with the duty to remove any impediment likely to delay the general elections in violation of the express command of the Constitution.
It is also the duty of the governments whether Federal or Provincial not to act in any manner during the term of the Assemblies that may impede or prejudice the holding of elections within the time frame explicitly provided under the Constitution.
The appointment of caretakers is a unique feature of our Constitution and alien in most of the other democratic states. The appointment of caretaker governments is temporary and only for the period specified under the Constitution i.e till the election of a leader of the House after the holding of the general elections within the mandatory period of sixty or ninety days.
The State cannot be governed in the absence of the chosen representatives for more than the ninety days expressly provided for holding the general elections followed by election of a leader of the House.
The primary duty and function of the caretaker governments is to maintain utmost neutrality and create an environment to enable the people to choose their representatives through a free and fair election process.
Delay of a single day in holding the general elections beyond the expressly provided time frame, i.e ninety days, is the most grave violation of the Constitution and denial of the constitutional rights of the people. It amounts to suspension of the Constitution because it breaches its foundational principle; exercise of powers and authority of the State through the chosen representatives.
The framework of the Constitution has created a political right in favour of each citizen to govern the State and exercise the powers and authority through their chosen representatives.
The Constitution has already been violated and its further violation has become imminent and unavoidable.
The President, Governor and the Commission failed to resolve the created impasse which itself was in violation of the duties imposed on them under the Constitution.
The legal rights of the people have been violated so has been the Constitutional command. It appears that the neutrality of the exalted offices of the President and Governors were compromised.
The rule of law is eroded and when people lose trust in the commitment of the State to protect their freedoms and rights then in such an eventuality the society descends into chaos and anarchy.
The impunity with which the Constitution has been seriously violated and the constitutional rights infringed in the past and continues to be so is inconceivable and appalling.
It is a primary constitutional duty of the Commission that the delayed elections are held in a fair, free and transparent manner without giving anyone an opportunity to complain.
The registered voters, 125,626,390, who have suffered the denial of their most valuable constitutional rights may, if they so desire, exercise their right to claim remedies for the tortuous acts and thus vindicate their rights and set an example for creating a deterrence for the future.”
Justice Athar Minallah
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