The federal government told the Supreme Court (SC) on Monday that organising and conducting free and fair elections in the presence of elected provincial governments in Punjab and Khyber-Pakhtunkhwa (K-P) may not be possible.
Submitting its written response, Attorney General for Pakistan (AGP) Mansoor Awan also urged the apex court to include the remaining six SC judges in the bench presiding over the case probing into the Election Commission of Pakistan's (ECP) decision to delay provincial assembly polls.
The concise statement stressed the need for a full bench to end the controversy regarding the 4 to 3 order.
Earlier in March, the SC had ordered the ECP to hold polls for the legislative assembly of Punjab as per President Arif Alvi's direction. However, the electoral watchdog later delayed the election until October 8 on the grounds that it could not conduct transparent and peaceful polls on the scheduled date of April 30.
With the SC is all set to resume hearing the Pakistan Tehreek-e-Insaf's (PTI) petition against the postponement, the government has challenged the maintainability and hearing of the petition "based on misreading and mistaken understanding of the order" passed in previous proceedings.
The government maintained that "we are of the considered view that our decision concurring with the decision of our learned brothers (Justice Yahya Afridi and Athar Minallah) in dismissing the present suo motu proceedings and the connected constitution petitions is the order of the court with a majority of 4 to 3".
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"As a consequence, [...] the president is not empowered to appoint the date for holding general elections to the provincial assembly of Punjab nor is the K-P governor required to give the date for general elections to the provincial assembly of Punjab. Resultantly, the ECP order dated March 22 cannot be questioned in the instant proceedings. As a result, the instant Petition is liable to be dismissed," the written statement added.
Further, the AGP submitted that in order "to give effect to the scheme of Articles 224 and 224A, the Elections Act, 2017 contains an elaborate and exhaustive set of powers and functions that the caretaker governments can and are required to perform.
"Section 230 of the Elections Act, 2017 prescribes the limitation upon the powers and functions of the caretaker governments.
"The issue at hand is that the provincial governments were statedly dissolved to achieve political objectives i.e. to force general elections to the National Assembly.
"While there is nothing wrong with such a political objective, otherwise, but under the constitutional scheme, organising and conducting free and fair elections in the presence of elected provincial governments in the Provinces of Punjab and K-P may not be possible.
"It is true that bye-elections have been organized and conducted in the presence of elected governments, however, the same may not be taken as a benchmark for organising and conducting the general elections.
"In the past, there have been instances where allegations of massive rigging and corrupt practices were made against an elected provincial government. This question of harmonising Articles 224 and 218(3) is of first impression and has not been dealt with by the superior courts of Pakistan.
"On this count alone, it is appropriate that the full court gives a conclusive finding on this aspect, outlining the powers and functions that an elected government may perform and the limitations thereon, in an eventuality where general elections to the National Assembly are held in the presence of an elected provincial government, and vice versa."
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