President Alvi, ECP Responsible For Impasse On Election Date, Says Justice Minallah

In an additional note, SC judge says by delaying the polls, the Constitution was violated

President Alvi, ECP Responsible For Impasse On Election Date, Says Justice Minallah

Supreme Court’s Justice Athar Minallah has observed that President Arif Alvi, the Election Commission of Pakistan (ECP) and the four governors were responsible for not adhering to the Constitution by delaying the announcement of elections.

"The President, Governor and the Commission failed to resolve the created impasse, which itself was in violation of the duties imposed on them under the Constitution," observed Justice Athar Minallah in a 41-page detailed additional note on the elections case issued by the Supreme Court last month.

Justice Minallah was part of the three-judge bench, headed by Chief Justice Qazi Faez Isa, which heard the petitions seeking the top court’s directions to conduct general elections within 90 days. 

The 41-page additional note, which is not binding, stated that the delay of even a single day in holding general elections beyond the legal timeframe was the gravest violation of the Constitution and amounted to the suspension of the Constitution.

"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 the constitutional rights of the people. It amounts to suspension of the Constitution because it breaches its foundational principle; exercise of powers and authority of the State through the chosen representatives,” observed Justice Athar Minallah in his additional note. 

The court observed that the failure to hold elections and allowing caretaker setups to rule was a violation of their fundamental rights.

“In the case in hand, the people of Pakistan, particularly the registered voters, have been deprived of the most fundamental right to participate in the governance of the state through chosen representatives and obviously the right to vote in accordance with law,” he observed. 

“They are being governed by unelected caretakers in violation of the Constitution and their fundamental rights."

Justice Minallah, who was the chief of the Islamabad High Court prior to his elevation to the Supreme Court, noted that the people have become victims of the "wrongful exercise of public powers and reckless disregard for duties imposed under the Constitution and statutes upon the President, Governors and the Commission i.e the Commission and the members.”

“They are all in breach of their statutory duties. Their conduct and failure to discharge their constitutional duties have made them answerable to the people. They have exposed themselves to actions against their tortuous acts," he observed, adding, It is the duty of public authorities to obey the law and exclusively serve the interests of the general public. It is a duty of the courts to put an end to impunity against the violation of the Constitution and constitutional rights.”

"The framers of the Constitution had created the offence of high treason under Article 6 with the object that it will function as a formidable deterrence [against actions that violate the Constitution]. But the events following the promulgation of the Constitution have proved that the offence, rather than creating deterrence, has been reduced to a mere platitude", observed Justice Minallah.

Justice Minallah observed that moving forward, the ECP will be failing in its duty if the elections are not only held in a fair, free and transparent manner but they must also be seen as such by each citizen. 

"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."

The Constitution was made unworkable by their reckless disregard for the duties imposed upon them under the Constitution and the Act of 2017, stated the additional note.

“This Court could not become complicit to the serious violations of the Constitution. The date of February 08, 2024, was appointed by the President and announced by the commission without prejudice to and notwithstanding the consequences that they may have exposed themselves to on account of the violations 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.” 

It noted that the offices of the President and the Governor are premised on the principle of neutrality, and its incumbents ought to foresee that failing to perform their constitutional duties could lead to "depriving the people of their most valuable rights.” 

“In case of a constitutional impasse created either by the President or a Governor, regardless of whether it is politically motivated, deliberate or reckless disregard for the constitutional rights of the people, it becomes a duty of the Commission to proactively make the Constitution workable.” 

No reason or excuse can condone the violation of the Constitution in relation to holding the general elections within the expressly provided time frame therein, the additional note of Justice Minallah stated. 

This is a strict liability duty because deprivation of the people of their right to vote and to participate in the governance is so serious and grave that the violation is intolerable, and an attempt to condone it is complicity, it added. 

It is inconceivable under the Constitution that the state could be governed otherwise than by the chosen representatives except during the expressly specified period between the dissolution of the legislatures and the election of the leader of the House pursuant to the general elections. 

Justice Minallah has further observed that the primary duty of a caretaker government is to maintain utmost neutrality and create an environment that enables the people to choose their representatives through a free and fair election process.

The appointment of caretakers is a unique feature of our Constitution and alien in most of the other democratic states, observed Justice Minallah, further maintaining that the appointment of caretaker governments is temporary and only for the period specified under the Constitution. 

“The state cannot be governed in the absence of the chosen representatives for more than the 90 days expressly provided for holding the general elections followed by the election of a leader of the House.” 

Justice Minallah noted that the object and purpose of appointing a caretaker government is to ensure that the routine and day-to-day functions of the executive branch of the state are not affected between the dissolution of assemblies and a new government being sworn in.

"The Constitutional violation can neither be condoned nor cured on the touchstone of Article 254.”

“The undermining and suspension of an order established by the people for the governance of the State amount to holding the Constitution in abeyance,” he observed.

“An attempt to delay elections deprives the people of exercising their fundamental right to exercise the powers and authority of the State through chosen representatives and thus alienates and isolates them, besides undermining the legitimacy of the scheme of the Constitution.” 

Justice Minallah said that the Constitution had already been violated, and its further violation had become imminent and unavoidable. The assemblies of Punjab and Khyber Pakhtunkhwa were dissolved, and general elections were to be held within 90 days. The governor acted on the advice of the chief minister to dissolve the assembly of Khyber Pakhtunkhwa. 

But, the governor breached his duty by not appointing a date for holding the elections within the time frame provided under the Constitution. 

In Punjab, the governor did not act on the advice, and the assembly automatically dissolved upon the expiry of the 48-hour period to act on the advice tendered. 

The ECP had advised the governors to appoint a date and had also proposed the timeframe. But the two governors chose not to discharge their constitutional duties. The commission, though, did not pursue the matter proactively, nor did the President appear to have discharged his duties effectively.

A constitutional impasse seems to have been created by the holders of public office. They ought to have foreseen that failure to appoint a date would violate the Constitution and the constitutionally guaranteed rights of the people of the two Provinces. 

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 commission failed in its duty imposed under the Constitution read with the Act of 2017 to ensure that elections are held in accordance with its commands, particularly the time frame expressly set out by its framers. Their actions and conduct have materially contributed to the violation of the Constitution, which has deprived the people of their most fundamental and valuable rights. 

When the transgressors and those responsible for the 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. 

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.

The writer is an Islamabad based journalist working with The Friday Times. He tweets @SabihUlHussnain