SC urged to ask Alvi, ECP to give election date and issue schedule, respectively

ISLAMABAD: The Supreme Court has been asked to direct the president to announce the date of elections within 90 days of the dissolution of the National Assembly, and the ECP to issue the election schedule accordingly.

Pakistan Tehreek-e-Insaf (PTI) Secretary Omar Ayub, on Monday, filed a constitutional petition and cited the Election Commission of Pakistan (ECP), the Federation through Secretary Law and Justice Division, president of Pakistan, chief secretaries and governors of all the provinces and the Council of Common Interests (CCI) as respondents.

He also prayed that the decision of the CCI, dated 05.08.2023, approving the census, and the notification by the Bureau of Statistics dated 08-05-2023 of publishing the census may be declared to be illegal, unlawful, and void ab initio.

He submitted that the National Assembly was dissolved on 9th August 2023 by the president on the advice of the prime minister. The elections to the National Assembly, under the Constitution, and as per the judgments of the Supreme Court, have to be held on or before 7th November 2023 and the president of Pakistan is to announce the date.

The president vide letter dated 23.08.2023 has invited the ECP on consultation for fixing the date of elections, but the ECP vide letter dated 24.08.2023 refused to meet with the president on the pretext that under Section 57(1) of the Election Act, 2017 (as amended on 26.07.2023), it is the ECP which has the power to fix the date of elections.

He submitted that Section 57(1) is contrary to Articles 48(5)(a), 58(1), 105(3)(a), 112(1), and 224 of the Constitution, which provides that in case of dissolution of National Assembly/ Provincial Assembly by the president/governor on the advice of prime minister/chief minister the date of election is to be given by the president or governor, and elections have to be held within 90 days. Therefore, Section 57(1) is ultra vires the powers of the Constitution and, null and void.

The petitioner contended that before the dissolution of the National Assembly on 9th August 2023, a meeting of a so-called CCI was held on 5th August 2023, in which the new census of 2023 was approved by it.

The CCI was quorum non judice as it consisted of two caretaker chief ministers, i.e., of KPK and Punjab, who were not politically elected and do not represent the voters of KPK and Punjab and as such have no right to represent them or their interests and therefore, cannot under the law take permanent decisions like approving the census which directly affects the two unrepresented provinces. In this respect, any approval by this wrongly constituted body is therefore unlawful and of no legal effect.

The petitioner submitted that the governors of Sindh and Balochistan are required to announce the date of elections within 90 days of the dissolution of the Sindh and Balochistan assemblies, and the ECP be directed to issue the election schedule accordingly.

The petitioner also prayed that the delimitation exercise proposed to be taken by the ECP, dated 17.08.2023, to be declared illegal, unlawful, and void ab initio.

He further asked the court that Section 57(1) of the Election Act, 2017 providing that the date of elections is to be fixed by ECP may be declared to be ultra vires the constitution and being contrary to articles 48(5)(a), 58(1), 105(3)(a), 112(1), and 224.

It also requested that Section 17(2) of the Election Act, 2017, may be declared to be illegal and ultra vires the Constitution in that a provision which allows the ECP to contravene the constitutionally-mandated 90 days under the pretext of delimitations is not sustainable under the law.

Copyright Business Recorder, 2023