Even a single day’s delay in holding polls beyond 90-day time-frame most grave violation of Constitution: SC judge

ISLAMABAD: Judge of Supreme Court Justice Athar Minallah Thursday said that even a single day’s delay in holding general elections beyond the 90-day time-frame was “the most grave violation of the Constitution”.

Justice Athar made the remarks in his additional note in a matter related to the case of election date. Earlier this month, a three-member bench of the apex court 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.

In a 41-page note, Justice Athar declared that even a single-day delay in conducting the election amounted to suspension of the Constitution. He stressed that the Election Commission of Pakistan (ECP) must ensure fair, free, and transparent elections that are perceived as such by every citizen.

The judge stated that the Constitution is the supreme law of the land and every public office holder, before assuming the responsibilities of his or her office, swears an oath in the name of Almighty Allah to uphold, defend and protect this testament of the expression of the will of the people.

He added that the Constitution manifests the solemn commitment of the State to the people of Pakistan that it is an inalienable right of every citizen, where ever he or she may be and of every person for the time being within Pakistan, to enjoy the protection of law and to be treated in accordance with law; it resolutely assures and guarantees that no action detrimental to the life and liberty, body, reputation or property shall be taken except in accordance with law.

He stated, “The violation of the Constitution and denial to the people of Pakistan of their most valuable rights stands established because of failure to hold elections within the time expressly specified by the framers of the supreme law.”

“When the transgressors and those responsible for wrongful exercise of public powers become unaccountable it creates impunity for even the most serious infringement of the Constitution and the freedoms and rights of the people. Such impunity renders the Constitution unworkable and a farce. Is the impunity for deprivation of constitutional rights and serious violations of the Constitution absolute? The answer is undeniably in the affirmative.

The impunity with which the Constitution has been seriously violated and the constitutional rights infringed in the past and continues to be so is inconceivable and appalling.

Considering the fact that the Constitution itself states that violation of the Constitution amounts to the offence of high treason there is obviously no deterrence and this is obvious from the blatant and repeated violations throughout our history,” maintained the judge.

He mentioned that the phenomenon of enforced disappearances, one of the gravest and most atrocious forms of deprivation of constitutional rights seems to have become an unannounced policy of the State since it was acknowledged with pride by a legitimised ruler in his memoirs. He added, “The arbitrary deprivation of liberty, trespass of private homes, violation of the right to privacy or the inviolable right to dignity, child labour and their employment for gain seem to have become a norm without demur.”

He also pointed out, “The inhumane, harsh and life threatening conditions in prisons, custodial torture, violence against journalists and political workers, arbitrary restrictions on freedom of expression through wrongful exercise of public powers appear to have become a norm.

The victims are not only the ones who have been wronged but the society as a whole. Misfeasance in public office, abuse of public power, oppressive and arbitrary conduct of those who hold public power have reduced the guaranteed fundamental rights to mere clichés.

Before we discuss the remedies available under the Constitution to put an end to such absolute impunity for the most serious violations of the constitutional rights, it would be necessary to understand the cause of lack of deterrence.”

Justice Athar observed that regrettably, our constitutional history is not at all flattering. At the inception of the creation of Pakistan as an independent State, this Court contrived the doctrine of necessity in the Maulvi Tamizuddin case15 which was an invitation to future adventurers to suppress the will of the people. The foundation for legitimising a martial law was laid down by this Court in the Dosso case.

Regarding the delay in the elections, Justice Athar 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 said.

The judge 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.”

He mentioned that holding general elections by November 7 was a constitutional requirement after the dissolution of the National Assembly and the date of Feb 8 was appointed by the President and announced by the ECP 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.

He added, “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.

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.

He added, “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.”

He noted that the president and governors ought to remain neutral according to their positions. He said that the ECP cannot be a “silent spectator” when the president or governors do not take action.

He further said that 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.

Copyright Business Recorder, 2023