Mohammad Sibtain Khan & others vs Election Commission of Pakistan thr. Chief Election Commissioner, Islamabad and others
This matter concerns a constitutional petition challenging an order issued by the Election Commission of Pakistan (ECP) on 22.03.2023, which effectively annulled the polling date previously fixed by the President of Pakistan. The petitioners contend that the ECP lacks the constitutional or legal authority to unilaterally alter a polling date set by the President under Section 57(1) of the Elections Act, 2017 and Article 112 of the Constitution of Islamic Republic of Pakistan, 1973. The ECP purportedly relied on Article 254 of the Constitution to justify the delay. The Court observed that Article 254 provides post facto protection for acts performed beyond prescribed time limits but does not grant prior authorization for delaying constitutional obligations. Emphasizing that timely elections are essential for the democratic system and fundamental rights of the public, the Court issued notice to the respondents to address the legal and factual questions raised regarding the ECP's authority and the validity of the grounds cited for postponing the elections to 08.10.2023. The matter was adjourned for further hearing.
- Does the Election Commission of Pakistan have the authority to annul a polling date fixed by the President of Pakistan?
- Does Article 254 of the Constitution of Islamic Republic of Pakistan 1973 provide prior authorization for delaying constitutional obligations?
- Is the postponement of general elections a matter of public importance affecting fundamental rights?
- Section 57(1), Elections Act 2017
- Article 112, Constitution of Islamic Republic of Pakistan 1973
- Article 254, Constitution of Islamic Republic of Pakistan 1973
ORDER
Learned counsel for the petitioners submits that the order dated 22.03.2023 issued by the Election Commission of Pakistan (ECP) annuls the polling date fixed by the President of Pakistan in exercise of his power under Section 57(1) of the Elections Act, 2017 read with Article 112 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). It is, inter alia, contended that the ECP does not have any power under the law and the Constitution to pass such an order. It appears that the ECP has in the said order taken refuge behind Article 254 of the Constitution. The interpretation of that provision of the Constitution by this Court, inter alia, in Presidential Reference No.1 of 1988 (PLD 1989 SC 75), Rashid Ahmed vs. Government of Punjab (PLD 2010 SC 573) and Pakistan Peoples Party Parliamentarians vs. Federal of Pakistan (PLD 2022 SC 574) envisages post facto protection of the validity of the acts performed beyond the time fixed therefor by the Constitution. The said Article of the Constitution does not confer the prior authorization of delay in the execution of obligations required to be performed within a specified time prescribed by the Constitution. He further urges that the grounds given for extending the date of poll to 08.10.2023 have no backing of law or the Constitution. Such grounds may be available in several situations. In the past General Elections have been held notwithstanding that such factors were present at the time of the elections, for instance in 1988 and 2008.
2. Timely General Elections held "honestly, justly, fairly and in accordance with law" are crucial for the democratic system of government mandated by our Constitution. Any flaw, deficiency or failing in the holding of General Elections is, prima facie, a matter of public importance that affects the fundamental rights of the voting public.
3. In the first instance, therefore, notice is issued to the Respondents in this petition. The ECP shall come prepared to assist on the legal questions and the factual points raised in the petition.
4. To come up tomorrow i.e. 28.03.2023 at 11:30 am for further hearing.