Poll delay amounts to ‘suspension of Constitution’

Justice Minallah writes 41-page dissenting note

ISLAMABAD:

In a damning indictment of head of the state and top state organs, Supreme Court judge Athar Minallah has held that delaying the general elections beyond the ninety-day timeframe was “the gravest violation of the Constitution”.

“Delay of a single day in holding the general elections beyond the expressly provided timeframe, i.e., 90 days, is the most grave violation of the Constitution and denial of constitutional rights of the people,” wrote Justice Minallah in his 41-page additional note penned in connection with petitions seeking a date for the general elections and surfaced on Thursday.

Chief Justice Qazi Faez Isa presided over a three-judge bench that heard the petitions earlier this month. Apart from the chief justice, two other judges of the bench were Justice Aminud Din Khan and Justice Athar Minallah. “It amounts to a suspension of the Constitution because it breaches its foundation principle -- the exercise of powers and authority of the State through the chosen representatives,” the judge wrote.

Justice Minallah, in his hard-hitting note, declared that even a single-day delay in conducting the election "amounted to suspension of the Constitution". He emphasised that the ECP must ensure fair, free, and transparent elections that are perceived as such by every citizen. “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 framers of the Constitution created the offense of high treason under Article 6 with the expectation that it would function as a formidable deterrence. However, events following the promulgation of the Constitution have shown that the offense, instead of creating deterrence, has been reduced to a mere platitude," wrote the judge.

The judge criticised President Arif Alvi, governors and the ECP for not resolving the impasse, stating that their failure contravened constitutional duties. He noted that the president and governors failed in their duty to promptly appoint a date for general elections, as required under Article 48(5), leading to violation of legal rights and constitutional commands.

Read more: SC sets election date in stone

“The president, upon dissolution of the National Assembly, failed in his duty to promptly appoint a date for the general elections as required under Article 48(5) and instead wrote a belated letter to the commission for consultation. The latter, despite being the creation of the Constitution, refused consultation with a constitutional office and instead chose to write a letter based on its own interpretation which was in reckless disregard to the express provisions of the Constitution and the Act of 2017,” the additional note stated.

The judge said that the general elections to the National Assembly and the other two provinces (Punjab and Khyber-Pakhtunkhwa) cannot be held within the specified time because the strict liability imposed under the Constitution and the Act of 2017 upon the president, governors and the commission have been breached.

“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.” He said that excluding people from the electoral process was against the fundamental rights enshrined in the Constitution.

“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 90-day period was that of the president, the governors, and the ECP.” He noted that timely elections were a constitutional requirement and the people’s rights had been violated by not doing so. “The Constitution was made unworkable by their reckless disregard for the duties imposed upon them under the Constitution and the (Election) Act of 2017.”

The top court judge highlighted that holding general elections by Nov 7 was a constitutional requirement after the dissolution of the National Assembly. “The date of Feb 8 was appointed by the president and announced by the commission without prejudice to and notwithstanding the consequences that may have exposed themselves on accounts of violation of the Constitution and denial of rights to the people of Pakistan.”

Read: PML-N expects elections in January

“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,” he said. Article 224(2) states: “When the National Assembly or a provincial assembly is dissolved, a general election to the assembly shall be held within a period of 90 days after the dissolution, and the results of the election shall be declared not later than 14 days after the conclusion of the polls.”

Justice Minallah said the ECP and the president committed a constitutional violation by announcing Feb 8 as the election date. He added that the violation of constitutional and public rights by not holding elections within 90 days was so serious that no remedy was possible. The judge stated that the ECP should have played its role to save the Constitution if President Alvi or the governor was not fulfilling the constitutional responsibility of announcing the election date.

“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. “The commission […] is also empowered to give advice and directions to the government and it is not bound by their decisions which are seen as delaying the general election.

“The buck stops with the commission because the framers of the Constitution have charged it with the duty to hold the general elections within the time […].” At the same time, Justice Minallah noted that the president and governors ought to remain neutral according to their positions. He said the ECP cannot be a “silent spectator” when the president or governors do not take action.
“No reason or excuse can condone the violation of the Constitution in holding elections. This is a strict liability duty. Violation is intolerable and an attempt to condone it is complicity.

“The onus will always be on the commission (ECP), commissioner, and its members to establish on the touchstone of the principles of strict liability duty to establish that they were not in breach nor accountable for denial of constitutional rights to the people,” he said.