Single day’s delay in holding polls beyond 90-day limit ‘most grave’ constitutional violation: Justice Minallah

Justice Athar Minallah on Thursday said that even a single day’s delay in holding general elections beyond the 90-day timeframe was “the most grave violation of the Constitution”.

He made the remarks in an additional note penned in connection with the election date case. Earlier this month, a three-judge bench comprising Chief Justice of Pakistan Qazi Faez Isa, Justice Aminuddin Khan and Justice Minallah had heard a set of petitions calling for holding elections within 90 days after the dissolution of the National Assembly and the provincial legislatures.

The court had then directed the Election Commission of Pakistan to confer with President Dr Arif Alvi on the poll date. Subsequently, after months of dilly-dallying on the issue, the ECP agreed to hold general elections in the country on Feb 8.

Since the National Assembly was dissolved three days before the end of its constitutional term, Article 224 of the Constitution mandates that elections be held within 90 days of the dissolution, which was November 7.

But at the same time, Section 17(2) of the Elections Act states that “the commission shall delimit constituencies after every census is officially published”. The ECP had ruled out polls this year citing the need for fresh delimitation of constituencies after the approval of the 2023 digital census.

In a 41-page additional note, a copy of which is available with, Justice Minallah said, “Delay of a single day in holding the general elections beyond the expressly provided time frame i.e 90 days is the most grave violation of the Constitution and denial of constitutional rights of the people.

“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,” he said.

He said that excluding Pakistani voters from the electoral process was against 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 commission (ECP),” Justice Minallah stated.

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 November 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.

“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 ninety days after the dissolution, and the results of the election shall be declared not later than fourteen days after the conclusion of the polls.”

Justice Minallah said the ECP and the president committed a constitutional violation by announcing February 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.

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