SC declares ECP decision to hold Punjab Assembly elections on 8th Oct unconstitutional; orders to hold election on 14th May
Apex court directs to ensure free & impartial elections
Asks the federal govt to provide every possible facilitation for holding the elections
ISLAMABAD ( Web News )
The Supreme Court of Pakistan ruled on Tuesday that the Election Commission of Pakistan’s (ECP) decision to postpone polls to the Punjab Assembly till October 8 was unconstitutional and fixed May 14 as the date for polls in the province. The detailed verdict will be issued later on. The short verdict of the apex court is comprised of six pages.
A three-member bench of the Supreme Court headed by Chief Justice of Pakistan Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Munib Akhtar has declared null and void the Election Commission’s 22nd March decision of postponing the elections in Punjab and Khyber Pakhtunkhwa. The short order was read out by the Chief Justice of Pakistan.
According to the judgment, polling for the Punjab Assembly’s elections will be held on 14th May. The Returning officers will receive nomination papers till 10th of this month. The apex court directed to ensure free and impartial elections.
It further directed the caretaker government, Inspector General Police and the Chief Secretary Punjab to ensure security and steps should be taken for additional security in the province.
It also asked the federal government to provide every possible facilitation for holding the elections.
“The impugned order dated 22.03.2023 made by the Election Commission of Pakistan is declared to be unconstitutional, without lawful authority or jurisdiction, void ab-initio, of no legal effect and is hereby quashed,” the ruling said. “Neither the Constitution nor the law empowers the Commission to extend the date of elections beyond the 90 days period as provided in Article 224(2) of the Constitution.”
The ECP had on March 22 announced that the elections in Punjab would be held on October 8. The date was earlier set on April 30, in consultation with the president.
In the written verdict, the top court restored the election schedule issued by the ECP on March 8 with certain modifications.
The changes made by the court in the election programme are:
The last date for filing appeals against decision of the returning officer rejecting/accepting the nomination papers is April 10
The last date for deciding on appeals by the Appellate Tribunal is April 17
The revised list of candidates will be published on April 18
April 19 will be the last date for the withdrawal of candidature and publication of the revised list of candidates
Electoral symbols will be allotted to contesting candidates on April 20
Polling will be held on May 14
The court noted that during the course of hearings, the ECP had categorically stated that if it was provided with necessary aid and assistance by the executive authorities in the provinces and Centre, then the commission would be able to organise and conduct the general elections to the Punjab and Khyber Pakhtunkhwa (KP) assemblies honestly, justly and fairly.
Keeping this in view, the court directed the federal government to release election funds worth Rs21 billion to the ECP by April 10 for elections to the assemblies of Punjab and KP.
“The Commission shall, by April 11, file a report in the court stating whether the said funds have been provided and received and if so, whether in full or in part. The report shall be placed before the members of the bench for consideration in chambers.
“If the funds have not been provided or there is a shortfall, as the case may be, the court may make such orders and give such directions as are deemed appropriate to such person or authority as necessary in this regard,” the SC order said.
It directed the ECP to utilise the funds for elections to the Punjab Assembly in the first instance and added that if there was a shortfall in funds for polls in KP later, the ECP “may make an appropriate representation to this court for such consideration and orders as deemed appropriate”.
The court further instructed the Punjab caretaker government, inspector general and chief secretary (security) to provide the electoral body with a security plan by April 10.
“Furthermore, in any case, the Government of Punjab and all officials thereof must, in the discharge of constitutional and legal duties and responsibilities, proactively provide all aid and assistance to the Commission for the holding and conduct of the general election,” the apex court verdict said.
It went on to say that the federal government, in the discharge of its constitutional duties, provide aid and assistance to the ECP as required by it for holding elections in Punjab and KP.
“Without prejudice to the generality of the foregoing, the federal government must make available all necessary personnel, whether from the Armed Forces, Rangers, Frontier Constabulary and all other forces under the direct, indirect or ultimate command and control of the said Government, as are required by the Commission for security and other purposes related to the general elections.”
In this regard, the federal government should provide a plan to the ECP by April 17, the SC stated.
It warned that if the Centre or the Punjab caretaker government failed to provide aid and assistance to the ECP, the commission could approach the court and an appropriate order would be passed on the matter.
Referring to elections in KP, the order recalled that the counsel of the KP governor had withdrawn from an appearance in court “on account of a certain stand taken by a political party which learned counsel was also representing”.
“The Governor, KP province, therefore, ceased to have representation before the court,” it maintained, pointing out that the matter on elections in KP was not adjudicated upon. “Permission is granted to the petitioners to file such petition and/or seek such relief before such forum as is deemed appropriate.”
The complete judgment is as under:
For detailed reasons to be recorded later and subject to what is set out therein by way of amplification or otherwise:
- The impugned order dated 22.03.2023 (“EC Order”) made by the Election Commission of Pakistan (“Commission”) is declared to be unconstitutional, without lawful authority or jurisdiction, void ab-initio, of no legal effect and is hereby quashed. Neither the Constitution nor the law empowers the Commission to extend the date of elections beyond the 90 days period as provided in Article 224(2) of the Constitution.
- The Election Programme notified by the Commission under s. 57(2) of the Elections Act, 2017 on 08.03.2023 (vide notification No. F.2(3)/2023-Cord.) for the general election to the Punjab Assembly stands revived and restored immediately with, however, certain modifications. The need for the modifications arises for the following reason. On 22.03.2023, when the EC Order was made matters had reached up to stage 5 of the notified Election Programme. The EC Order unlawfully purported to withdraw the Election Programme. Thus, the remaining stages (Nos. 6 to 11) could not be given effect to. In the meanwhile 13 days have been lost on account of the unlawful order made by the Commission. In consequence thereof, the remaining stages have to be moved forward to take account of the lost period, and the Election Programme must be modified accordingly. We come to this conclusion with reluctance but consider it inevitable on account of the situation brought about by the EC Order. Therefore, the Election Programme will, in relation to stages No. 6 to 11, stand modified, and apply in the following manner:
- Last date for filing of appeals against decision of the Returning Officer rejecting/accepting the nomination Papers 10.04.2023
- Last date for deciding of appeals by the Appellate Tribunal 17.04.202
- Publication of revised list of candidates 18.04.2023
- Last date for withdrawal of candidature and Publication of revised list of candidates 19.04.2023
- Allotment of Election Symbol to contesting candidates 20.04.2023
- Polling day 14.05.2023.
- In consequence thereof, the polling day perforce must be shifted, and moved forward from 30.04.2023 to 14.05.2023.
- It is to be noted that on specific queries from the Court, the Commission categorically stated that if it was provided with necessary aid and assistance by the executive authorities in the Federation and the Provinces in discharge of their constitutional obligations under Article 220, then the Commission, notwithstanding everything set out in the recitals of the EC Order, would be able to organize and conduct the general elections to the Punjab and KPK Assemblies honestly, justly, fairly and in accordance with law, as required in terms of Article 218(3) of the Constitution. Therefore, the following further orders are made and directions given:
- The Federal Government shall forthwith and in any case by 10.04.2023 release and provide to the Commission funds in the sum of Rs. 21 Billion for purposes of the general elections to the Punjab and Khyber Pakhtunkhwa Assemblies. The Commission shall, by 11.04.2023, file a report in the Court stating whether the said funds have been provided and received and if so, whether in full or in part. The report shall be placed before the members of the Bench for consideration in Chambers. If the funds have not been provided or there is a shortfall, as the case may be, the Court may make such orders and give such directions as are deemed appropriate to such person or authority as necessary in this regard. The Commission shall be entitled to utilize the funds in the first instance for the purposes of the general election to the Punjab Assembly. If there is thereafter a shortfall for purposes of the general election to the KPK Assembly, the Commission may make an appropriate representation to this Court for such consideration and orders as deemed appropriate.
- The caretaker Cabinet that constitutes the Government of Punjab and, in particular, the Chief Secretary and the Inspector General Police of that Province must forthwith, and not later than 10.04.2023, provide a plan acceptable to the Commission for, inter alia, providing sufficient personnel for election-duty and security purposes for the holding of the general election. Furthermore, and in any case, the Government of Punjab and all officials thereof must, in discharge of constitutional and legal duties and responsibilities, proactively provide all aid and assistance to the Commission for the holding and conduct of the general election.
- The Federal Government must, in exercise of its powers and position in terms of Article 243(1) of the Constitution, and all other constitutional and legal powers enabling it in that behalf, and in discharge of its constitutional duties under Articles 148(3) and 220, provide all such aid and assistance to the Commission as required by it for the holding and conduct of the general elections to the Punjab and KPK Assemblies. Without prejudice to the generality of the foregoing, the Federal Government must make available all necessary personnel, whether from the Armed Forces, Rangers, Frontier Constabulary and all other forces under the direct, indirect or ultimate command and control of the said Government, as are required by the Commission for security and other purposes related to the general elections. In this regard, the Federal Government must forthwith, and not later than 17.04.2023, provide a plan acceptable to the Commission.
- If there is a failure by the Federal Government or the Caretaker Government in the Punjab to provide aid and assistance to the Commission and, without prejudice to the generality of the foregoing, in particular to comply with what has been set out hereinabove, the Commission may make an appropriate representation to this Court for such consideration and orders as deemed appropriate.
- Our attention has been drawn to certain matters that were pending in this Court (being SMC 1/2023 and CP Nos. 1 and 2/2023) and which were heard and decided on 01.03.2023 by a five member Bench of the Court by a majority of 3:2 (Umar Ata Bandial, CJ and Munib Akhtar and Muhammad Ali Mazhar, JJ; Syed Mansoor Ali Shah and Jamal Khan Mandokhail, JJ dissenting). In particular, our attention has been drawn to the detailed reasons of the two learned Judges in minority (released on 27.03.2023), wherein it is, inter alia, stated that the said matters were decided (and dismissed) by a majority of 4:3. Respectfully, the position as claimed by the learned Judges in minority is erroneous and not sustainable in law.
- Our attention has also been drawn to an order dated 29.03.2023 made in SMC 4/2022 by a majority of 2:1 by a learned three member Bench (Qazi Faez Isa and Aminuddin Khan, JJ; Shahid Waheed, J dissenting). The hearing of the present matter remained, and its decision by this Bench is, wholly unaffected by any observations made in the aforesaid majority order.
- Insofar as the general election to the KPK Assembly is concerned, in relation to which the present petitioners have also sought relief, learned counsel who entered appearance on behalf of the Governor of KPK Province withdrew from such appearance on account of a certain stand taken by a political party which learned counsel was also representing. The Governor, KPK Province therefore ceased to have representation before the Court. In such circumstances, the matter relating to the KPK Province is not adjudicated upon, with permission granted to the petitioners to file such petition and/or seek such relief before such forum as is deemed appropriate.