‘Election delay beyond 90 days tantamount to suspending constitution’

Justice Athar Minallah

ISLAMABAD: Supreme Court Judge Justice Athar Minallah has said that the Election Commission of Pakistan and the president violated the Constitution by setting the date of February 8 for the elections.

In a case concerning the general election date, Justice Athar Minallah, in a comprehensive 41-page additional note, contended that a delay of over 90 days in holding elections was tantamount to suspending the constitution. Justice Athar Minallah emphasized that after the National Assembly dissolution, holding general election by November 7, 2023 was a constitutional obligation.

“The president, under Article 48 Clause 5, holds the power to set the election date. Failing to do so for more than 90 days deprived Pakistanis of their right to vote,” he said in his additional note.

He stated that not holding elections within 90 days constitutes a severe constitutional and public rights violation.

“The election commission, the president, and the governors must remain neutral, with the election commission playing a proactive role to safeguard the Constitution,” he said.

The additional note emphasized that a single day’s delay beyond 90 days is a grave constitutional violation, which has already occurred and cannot be prevented from recurring. The president failed to fulfill his constitutional responsibility, Justice Minallah said.

He stressed that people cannot be denied elections, emphasizing that the delay violates the fundamental rights of citizens.

“Approximately 125.6 million registered voters were deprived of voting, and concrete steps are urged to prevent future election delays,” he said.

The additional note asserted that the violation of Article 224A was irremediable and non-impeachable, with each day without elections beyond 90 days considered a constitutional violation.

Justice Athar Minallah further addressed forced disappearances, asserting it as an unannounced state policy, highlighting encroachments on personal freedom and private homes, and routine acts against journalists and political workers.

He slated the constitutional history of the country, pointing out the adoption of the doctrine of necessity in the Maulvi Tamizuddin case. He emphasized that neither judges nor armed forces officers were above the constitution.

Justice Athar Minallah underscored the lack of caretaker governments in many democratic states, noting their purpose is to facilitate day-to-day affairs and ensure neutral environments for transparent elections.

In the constitution, he said only elected representatives can run the country, with Article 6 providing a solution for constitutional violations.

Justice Athar Minallah urged citizens to approach the court if there’s a delay in elections.

The additional note recalled historical instances of constitutional violations by Ziaul Haq and Pervez Musharraf. Justice Athar Minallah advocated for transparent and fair elections, emphasizing that over 12.5 million registered voters can set an example by voting against those who violate the constitution.

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