LHC says polls should be held in 90 days

Seeks Punjab governor's reply on polls date

Rana Yasif February 03, 2023
Lahore High Court. PHOTO: LHC.GOV.PK


The Lahore High Court on Friday sought a reply from Punjab Governor Balighur Rehman by February 9 on the announcement of the elections date after the lawyer representing him sought time from the judge, arguing that his side had some objections over the demand for polls after the dissolution of the provincial assembly.

Justice Jawad Hassan was hearing a plea filed by PTI Secretary General Asad Umar seeking direction to the Punjab governor for immediately announcing the date of elections in the province to ensure polls within 90 days of the dissolution of the provincial legislature.

Separately, LHC's Justice Shahid Karim issuing notices sought replies from the federal government and Election Commission of Pakistan (ECP) on a plea challenging the appointment of caretaker chief minister of Punjab, Mohsin Raza Naqvi.

As the proceedings in the first case commenced, the lawyer representing the ECP expressed his willingness to hold the elections, but in the next moment, told the court that a new development had occurred a day back when the electoral watchdog received a letter from the principal secretary to the Punjab governor, wherein it was stated that the country was facing an economic crisis.

To this, Justice Jawad remarked there had been worse economic conditions in the past, but even then, the elections were conducted.

“There are several judgments which say the elections [must] be held within the stipulated timeframe, the judge added.

PTI lawyer Barrister Ali Zafar argued that the ECP was placing the responsibility of giving the polls date on the governor while the latter wanted the former to proceed ahead with it.

He informed the court that the Constitution was very clear about the elections after the dissolution of a legislature.

He added that if the elections were not conducted in time, whatever the reason might be, it would be considered an “unconstitutional act”.

To this, the ECP lawyer argued the commission was ready to hold elections, but only informed the court about the recent letter it had received.
Justice Jawad told the ECP lawyer to set aside the governor’s letter and just announce the elections date.

He inquired what the ambiguity was when the Constitution was very clear over holding the elections after the dissolution of an assembly.

“There are 90 days wherein the elections are to be held,” he added.

In response, Additional Attorney General Nasar Ahmad asked the judge to allow the court to decide the date for the elections.

The judge replied that as the LHC was a constitutional court, it had to see what the Constitution stated for this purpose.

Advocate Azhar Siddique, representing a separate petition, read out the letter of the ECP, arguing that the commission was relying on the governor to give the date for the elections while the latter was placing the responsibility of doing that on the former.

The additional attorney general argued that there was sufficient time and they were not refusing the holding of the elections.

The judge inquired if there was someone representing the governor.

The PTI and ECP lawyers told him that nobody was in the court to represent the governor.

Justice Jawad, while addressing the ECP lawyer, asked him that when the commission was performing well,  why was the date of elections not being announced.

The ECP lawyer argued they the commission had just received a letter over the economic crisis in the country.

To this, the petitioner, Asad Umar, sought permission to speak on rostrum.
Justice Jawad remarked that he was the petitioner and could speak anytime in the court.

Umar pointed out that it was astonishing that the ECP had received a letter over the economic crisis to the extent of the elections in Punjab, but it had issued a schedule for holding by-polls on vacant seats.

Contrary to the PTI and ECP counsel’s claim, the lawyer representing the Punjab governor took the rostrum, requesting the court to grant him a week’s time to express his side's objections in detail.

Umar objected to the request, saying that enough time had already been “killed”.
On a point, Justice Jawad hinted at sending this matter to the LHC chief justice for forming a full bench. However, the lawyers representing the PTI and ECP did not agree to this proposal.

The governor’s lawyer proposed the formation of a larger bench, arguing that the matter was very significant in nature which needed to be decided after a detailed discussion.

He also repeated the objection over not making the federation and the province parties in the petition.

To this, Barrister Zafar replied that there was no need for it.

Umar filed the petition through Barrister Zafar contending that the Punjab governor had been impleaded through his principal secretary as a respondent since Article 105 (3) of the Constitution required him to appoint a date for the holding of the election to the provincial assembly not later than 90 days from the date of dissolution of the legislature, but he had failed to discharge that constitutional duty.

Barrister Zafar implored in the petition that on January 12, 2023,  then Punjab chief minister Parvez Elahi had advised the governor to dissolve the assembly in exercise of his constitutional powers under Article 112.

On January 14, 2023, pursuant to the advice of the then chief minister in accordance with terms of Article 112(1) of the Constitution, the assembly stood dissolved.

He contended that subsequently, the speaker of the Punjab Assembly through a letter on January 20, 2023 requested the respondent to fulfil his constitutional duties and immediately appoint a date for elections not later than 90 days from the date of the dissolution of the legislature as required by Article 105 (3)(1)(a) read with Article 224 of the Constitution.

The plea further read that the ECP, through a letter dated January 24, 2023, communicated its concern with respect to the inaction of the respondent in announcing a date for the elections and required him to fix a date between April 9, 2023 and April 13, 2023.

“More than 10 days have passed since the provincial assembly of the Punjab has been dissolved but the governor has failed to fulfil his constitutional duty by appointing a date of elections [in the province],” the plea read.

“The failure of the respondent to appoint the date of the elections is creating hurdles for the ECP to discharge its duties under Article 218(3) and the Elections Act and to organise the [polls] within the stated period of 90 days. The ECP in its letter has already highlighted these concerns but the respondent has remained unmoved,” it added.

The petition contended that the  inaction of the governor to appoint the date of elections was also frustrating the campaign plans of the candidates because of the uncertainty it had engendered.

“Unless the date of elections is known, and, consequent thereupon, the ECP undertakes the activities stipulated in Section 57 of the Elections Act, the election campaign cannot take off. Every day’s delay in the announcement of the date of elections is eating into the time available for [polls] campaign. This is completely against the scheme of the Constitution and the law… The respondent is depriving the petitioner of [his] fundamental right guaranteed under Article 17 of the Constitution, which, according to the law declared by the August Supreme Court includes the right of a political party to contest and participate in elections. Unless the date of the election is announced, the exercise of this right will be frustrated,” the plea read.

In the second case involving the appointment of Mohsin as the caretaker chief minister, the court also sought the legal assistance of the attorney general of Pakistan and advocate general Punjab.

The court also directed the  government lawyer to take instructions from the federation by the next date of hearing.

The petition, challenging Mohsin’s appointment as the Punjab caretaker CM, was filed by Awami Muslim League (AML) chief and former interior minister Sheikh Rashid through advocate Azhar Siddique.

The reason for filing this plea was Mohsin’s alleged affiliation with PPP’s Co-Chairperson Asif Ali Zardari, Pakistan Democratic Movement (PDM) and active involvement in the regime change movement against the PTI.

Advocate Azhar Siddique contended before the court that no due process was adopted by the ECP in appointment of the caretaker chief minister of Punjab.
He requested the court to set aside the impugned notification declaring it as illegal.

He implored in the petition that that since the ECP and its members had violated the constitutional and statutory requirements vis-à-vis appointing the caretaker chief minister of Punjab, they should be censored and held guilty of violating their constitutional position and committing misconduct.

The plea added that the ECP and its members be declared partial and incapable of holding ‘free and fair elections’.

The petitioner submitted to the court that the name of Mohsin was put forth by the present regime on account of his close association with the current ruling elite, particularly, Zardari and the Sharif family and his political enmity against the opposition.

The petition alleged that Mohsin had been involved in a corruption case,  initiated against him by the National Accountability Bureau (NAB), in which he struck a plea bargain, voluntarily returning money under Section 25 of the National Accountability Ordinance (NAO), 1999 and was thus a convicted person.

According to Section 15 of the NAO, where an accused person was convicted of an offence under Section 9, he shall forthwith cease to hold a public office and shall stand disqualified.

If an accused person has availed the benefit of Section 25, they shall also be deemed to have been convicted for an offence under the NAO and shall stand disqualified for public office.

The Supreme Court in a suo motu case had held that once a person was accused of corrupt practices and volunteered to return the amount they had pocketed or gained through illegal means, could hold any public office.

Under such circumstances, the petition added that Mohsin was not eligible to be appointed as the caretaker CM of Punjab and had no lawful authority to continue in the office.

The petitioner requested the court that the appointment of Mohsin as the caretaker chief minister of Punjab be declared as illegal and unlawful. The notification to appoint him as caretaker CM be set aside.

It was further requested the court that Mohsin be restrained from appointing any cabinet, performing any function vis-à-vis the issues of elections till the decision of this instant writ petition. The operation of the notification be suspended and he be restrained from performing any function of the stated office.


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