A candidate for the upcoming general elections has filed a contempt of court petition in the Supreme Court against Senate Chairman Sadiq Sanjrani, Senator Dilawar Khan and other senators for moving and voting in favour of a resolution that called for postponing the polls.
Ishtiaq Ahmed Mirza, a candidate from the constituencies of NA-57 and PP-18, filed the petition.
On Friday, Senator Dilawar Khan from the Balochistan Awami Party (BAP) moved a resolution in the upper House of Parliament calling for the postponement of general elections until the Election Commission of Pakistan (ECP) can guarantee equity in campaigning nationwide. He had further noted that many areas in the country are gripped by a severe cold spell with snow, making campaigning difficult. The poor security situation in certain parts of the country also impeded canvassing efforts.
Not only was the resolution allowed to be moved, but it was voted on with just 14 senators present in the House. Most senators present in the House voted in favour of the resolution. A senator from the Pakistan Muslim League-Nawaz (PML-N) opposed the resolution.
Mirza's petition before the Supreme Court called for initiating contempt of court proceedings against those senators who had cast their vote in favour of the resolution. These senators include Manzoor Ahmed, Ahmed Khan, Gurdeep Singh, Hidayatullah, Hilalur Rehman, Kamil Ali Agha, Kauda Babar, Mohammad Abdul Qadir, Naseebullah Bazai, Prince Ahmed Umer Ahmedzai and Sana Jamali.
The petitioner stated that the resolution inherently signifies malicious intent and hidden motives on the part of the senators, aimed at undermining the purported democratic process within the country.
He contended that the senators' attempts at postponing the upcoming general elections were unequivocally indicative of contempt towards the Supreme Court.
It is pertinent to mention here that Chief Justice Qazi Faez Isa, in various election-related proceedings, has expressed his determination and resolve to hold general elections on February 8, 2024.
The top court is doing away with every attempt to create hurdles in holding elections on time. Chief Justice Isa had led a bench which took up an application against a judgment by the Lahore High Court (LHC), wherein it ruled on the appointment of Returning Officers (ROs) from bureaucracy and decided the matter the same day while giving out a loud and clear message that elections will be held on time.
However, legal experts believe that the proceedings of Parliament can not be called into question by any court of law as per Article 69 of the Constitution. Moreover, a resolution passed by the House has no binding legal value.
Advocate Faisal Chaudhry, a former additional advocate general Punjab and legal expert, told [The Friday Times] that when the resolution was tabled, the required quorum was not complete, while less than a dozen senators in the House of 100 members assented to the resolution.
"Even otherwise, the passage of resolution has no legal value in the eye of law rather it was move as a political act," explained Advocate Chaudhry.
He added that the resolution was merely a political expression. Advocate Chaudhry, though, doubted the role of Senate Chairman Sadiq Sanjrani in the matter.
Advocate Chaudhry pointed out that in the past, the coalition government led by the Pakistan Democratic Movement (PDM) had used resolutions passed by Parliament for their gains.
Regardless, he said the courts should not take the move seriously.
Another additional advocate general Punjab, Barrister Qasim Chohan, echoed a similar legal view as Advocate Chaudhry. He said that proceedings which take place on the floor of the Parliament enjoy the privilege of the House and cannot be subject to contempt petitions, let alone charges of treason.
He, however, believes that Article 6 can only be invoked if the federal government files a complaint.
"A resolution in the Senate has no legal bearing on the conduct of the electoral process, for which schedule and process is underway. February 8, 2024, is the day etched for now, and any deviation without substantial probable cause be on the neck of the Election Commission," he added.
"Mindful, the tenure of half of the Senate expires in March. Without assemblies in place, the Electoral College for the Senate remains incomplete, too. That eventuality will cause political quicksand and morph into a constitutional crisis," Barrister Chohan further maintained.
Hafiz Ahsan Khokhar, another legal expert, said the issue has two aspects. The first is conducting elections, which is the responsibility of the Election Commission of Pakistan (ECP) under the relevant constitutional provisions and the Election Act 2017. He said that the ECP has issued the electoral programme with the concurrence of President Arif Alvi under Section 57 of the Act, and the decision was made as part of the top court's order of December 15, 2023.
After amendments in the Act, any change in the election schedule is a prerogative of the ECP. While the ECP retains the power to alter the schedule, it is impossible under the current scenario when the top court's order on the subject already exists.
He, however, said that the ECP could place the issue of security threats before the Supreme Court. Ultimately, the latter would decide any change in the schedule, as the matter is linked with the top court's past proceedings and verdicts, which remain in the field.
Advocate Khokhar was also of the view that stringent security measures were necessary to ensure free and fair elections, adding that the concerns of the parties highlighted in this resolution should be redressed as a true representation of the public cannot be translated into the national and provincial assemblies if security is not provided to candidates for election campaigns.