ISLAMABAD: The Supreme Court has succeeded in bringing all relevant parties to an accord on holding general elections on February 8 without interpreting any constitutional clause.
On September 17, when he took office, Chief Justice of Pakistan Qazi Faez Isa faced three major challenges: inquiries into the inner workings of the supreme court, civilian trials in military courts, and the need to hold general elections within 90 days.
The Supreme Court (Practice and Procedure) Act, 2023 was upheld by the whole court on October 11th, and a committee comprised of the three most senior SC judges has begun creating benches following mutual consultation.
Later, on October 23, a larger bench of five members led by Justice Ijazul Ahsan ruled that trying civilians in military courts was against the law.
The next general election date will be announced by a three-member bench led by Chief Justice Isa on Thursday, November 2.
The bench on October 23 took up the petitions submitted by the Supreme Court Bar Association (SCBA) and the PTI for holding general elections within 90 days.
If issues other than the conduct of elections were to be considered, the bench noted, constitutional interpretation would be necessary. A larger bench must be formed in accordance with Section 4 of the Supreme Court (Practice and Procedure) Act 2023 if this occurs.
The petitioner, who was represented by counsel, and the attorneys for both sides agreed that they would only seek to have general elections held and were therefore fine with the proposed three-judge panel.
The ECP attorney offered the date for holding the general elections when the bench resumed hearing the petitions on Thursday.
The bench has ordered the ECP to schedule a meeting with the president on Thursday in order to determine when national elections will be held.
It is ordered that “in this regard, the Attorney-General for Pakistan will arrange such a meeting and shall provide to the President this Court’s order of 23 October 2023 and today’s order, and be available to render assistance.”
“We expect that the matter of appointing a date for holding general elections shall be settled, and this court will be informed tomorrow, that is, 3 November 2023,” the order stated.
The court stated that it did not give its interpretation of any constitutional clause in order to prevent debate.
Even CJP Isa’s detractors agree that the February 8 general election date is good news. The ECP is required by the constitution to organize general elections within 90 days, but a prominent lawyer has claimed that the bench has approved a violation of this clause.
While several lawyers applauded the bench’s approach, some said that the court should have made it plain that holding elections within 90 days is a constitutional mandate.
Justice Athar Minallah of the bench agreed that action ought to be taken against those who had failed to hold the general elections within the 90-day deadline set by the Constitution. It is expected that today’s [Friday’s] judicial order will deal with these parts of the situation.
How Chief Justice Isa’s approach to the elections case differs from that of his predecessor, Umar Ata Bandial, is still up for discussion. Punjab and Khyber Pakhtunkhwa (K-P) assembly elections were not scheduled until after CJP Bandial took suo motu notice of the problem.
However, he was still unable to cultivate agreement among all parties involved. There was disagreement even inside the Supreme Court, and the powerful had sided with parliament over the courts.
Now CJP Qazi Faez Isa has made it clear that the court would not allow anyone to back out of elections if a date has been agreed upon by all parties involved.
The three-judge bench presided over by previous CJP Bandial has been shown to have a different jurisprudence than the bench presided over by CJP Isa.
Authoring the ruling in the Punjab Assembly elections case, Justice Munib Akhtar ruled that the Election Commission of Pakistan (ECP) would have gone to the Supreme Court (SC) if it had been unable to organize polls within 90 days.
The same bench had previously issued directives to the executive branch and the ECP regarding the conduct of elections. Even a new election schedule had been established by the Supreme Court. The current bench, however, did not adhere to the precedent set by the previous bench.
Chief Justice Isa has made it clear that setting election dates is not the Supreme Court’s responsibility. He stated every institution must work within its domain.
CJP Bandial did not let the Lahore High Court to rule on an election-related ICA. After rendering constitutional institutions ineffectual, some scholars believe Justice Bandial should have discouraged political actors from seeking redress in the courts.
The PTI chose not to take seats in the National Assembly’s opposition soon after a vote of no confidence was passed. Seven months before the end of their tenure, the provincial assembly of Punjab and Khyber Pakhtunkhwa were dissolved as part of its political plan.
The dissolution of assemblies by the PTI has been questioned before, and Justice Minallah had previously advised looking into the matter. But Justice Bandial and several similar judges had rejected this plan. A crisis could have been avoided if this question had been settled.
Hamid Khan, a senior member of the PTI legal team, told a private television network that he believes President Dr. Arif Alvi and the ECP broke the law by setting the election date. “The president made a mistake by not announcing the date of elections,” according to him.
