From L ro R: Justice Munib Akhtar, Justice Umar Ata Bandial and Justice Muhammad Ali Mazhar.

The Supreme Court of Pakistan, in a 3-2 verdict, ruled on Wednesday that elections to the Khyber Pakhtunkhwa (KP) and Punjab assemblies which have been under caretaker governments since the provincial assemblies were dissolved in January should be held within 90 days.

"Parliamentary democracy is a salient feature of the Constitution. There can be no parliamentary democracy without Parliament or the provincial assemblies,” the ruling said. "And there can be neither Parliament nor provincial assemblies without the holding of general elections as envisaged, required and mandated by and under the Constitution and in accordance therewith.”

The majority verdict, given by Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Munib Akhtar and Justice Muhammad Ali Mazhar, was announced by the apex judge. Justice Jamal Khan Mandokhail and Justice Syed Mansoor Ali Shah — who were among the four judges who had written additional notes in the Feb.23 order — dissented with the ruling.

The top court held that in situations where a governor dissolved a provincial assembly, the constitutional responsibility of appointing a date for the election was to be discharged by the governor. "In situations where the assembly is not dissolved by order of the governor, the constitutional responsibility of appointing a date for the general election that must follow is to be discharged by the president.”

The court stated that since elections after the dissolution of a provincial assembly were to be held within a stipulated period of time, the president or the governor "must discharge the constitutional responsibility of appointing a date for the said election swiftly and without any delay and within the shortest time possible.”
"The Election Commission of Pakistan (ECP) must proactively be available to the president or the governor, and be prepared for such consultation as required for a date for the holding of general elections,” the order said.

It said that regarding the dissolution of the Punjab Assembly, the constitutional responsibility for appointing a date for the general election was to be discharged by the president as the governor had refused to sign on the assembly dissolution summary.
But regarding the dissolution of the KP Assembly, the verdict continued, the constitutional responsibility for appointing a date for elections was to be discharged by the governor.

"It further follows that the order of the president dated Feb 20 is constitutionally competent and it applies to the Punjab Assembly, but the same is constitutionally invalid insofar as it applies to the KP Assembly and is therefore hereby set aside. It also follows that the governor of KP, in as much as he has not appointed a date for the holding of the general election to the assembly of that province, is in breach of his constitutional responsibility,” the order said.

It further said that in ordinary circumstances, the general election in Punjab ought to be held on April 9 — the date given by the president - but because there were delays in the announcement of the poll date, it might not be possible for the province to meet the 90-day deadline.

"The ECP is therefore directed to use its utmost efforts to immediately propose, keeping in mind sections 57 and 58 of the Elections Act, date to the president that is compliant with the deadline. After consultation with the ECP, the President shall announce a date for holding the general election to the Punjab Assembly. If such a course is not available, then the Election Commission shall in like manner propose a date for the holding of the poll that deviates to the barest minimum from the aforesaid deadline,” the order said.

The court directed the KP governor to appoint a date for elections in the province after consulting the ECP. It also instructed the federal government to "ensure that the government of every province is carried on in accordance with the provisions of the Constitution”.
"The federal government is inter alia obligated on an immediate and urgent basis, to forthwith provide the ECP with all such facilities, personnel and security as it may require for the holding of the general elections,” it said.

Ahead of the verdict where the much-anticipated decision was announced was packed with journalists and lawyers.

A quick recap of the previous proceedings: Feb 24: Division in the bench seen after Justice Mandokhail, who is part of the current bench, objects to the suo motu notice and calls it "unjustified”. Feb 24: Justice Mandokhail also mentions audio recordings that purportedly featured fellow judge. Feb 27: SC bench reconstituted as Justice Ahsan, Justice Naqvi, Justice Minallah and Justice Afridi distance themselves from the bench. Feb 27: Reconstituted five-member bench debates role of governor and president in announcing election date. Feb 28: SC asks PTI and coalition parties to come up with a date for elections after discussion, but PDM says consultation will take more time.

In a joint dissent note, Justice Shah and Justice Mandokhail said that the suo motu proceedings initiated by the chief justice were "wholly unjustified”, besides being initiated with "undue haste”.

The note stated that the suo motu proceedings "do not constitute a fit case to exercise the extraordinary original jurisdiction of this court under Article 184(3) of the Constitution and are thus not maintainable as the same constitutional and legal issues seeking the same relief are pending and being deliberated upon by the respective provincial high courts in Lahore and Peshawar, without there being any inordinate delay in the conduct of the proceedings before them.”

"There is no justification to invoke our extraordinary jurisdiction under Article 184(3) to initiate suo motu proceedings or entertain petitions under Article 184(3), as a single Bench of the Lahore High Court has already decided the matter in favour of the petitioner before the said High Court vide judgment dated Feb 10 and this judgment is still in the field. The intra-court appeals filed against the said judgment are pending before the Division Bench of the Lahore High Court (and none of the said petitioners has approached this Court under Article 185(3) of the Constitution),” it said.

The judges explained in their note that when a constitutional petition was pending before a high court, it should not be interfered with and should rather be supported to strengthen the autonomy of provincial courts.

They also maintained that there was no "inordinate delay in the proceedings pending before the high courts” - as said by the CJP in previous hearings - adding that the instant proceedings of the SC had delayed the matter in the high court.

"However, considering the importance of the matter we expect that the respective high courts shall decide the matters pending before them within three working days from today,” the note stated.

"We, therefore, agree with the orders dated Feb 23 passed by our learned brothers, Yahya Afridi and Athar Minallah, and dismiss the present constitution petitions and drop the suo motu proceedings,” the dissent note concluded.