Questions of infallibility.

The five-member bench of SC which was a shortened version of the nine-member bench initially formed to dilate on the suo moto notice in regards to the election date in KP and Punjab in the backdrop of the unilateral declaration of the date by the President held that elections should be conducted within ninety days and no institution of the state had the authority to postpone elections beyond that period. It also said that the declaration of the President in regard to KP was not valid because it was the obligation of the governor to announce the date as per the constitution after having dissolved the assembly on the advice of the chief minister. However, in the case of Punjab, the President must give the date in consultation with the ECP.

Holding elections within ninety days after the dissolution of provincial assemblies is surely obligatory according to the constitution and no one can dispute that. But the way the proceeding occurred and the fact that the orders of the dissenting judges were not taken into account while deliberating on the issue has raised my questions to be answered. The dissenting judges expressed the view that the apex court could not take suo moto notice of the issue when the matter was already under hearing in two provincial high courts in the light of the SC decision already given in a similar case. Justice Athar Minallah even stressed the need for ascertaining whether the dissolution of the assemblies was done in conformity with the constitution or not before considering the issue in regard to the election date. The orders of the dissenting judges are very much pertinent and should have been deliberated upon.

The five-member bench also did not give any consideration to the submissions of the ECP that it was unable to fulfill its obligations regarding elections due to the fact that the judiciary had refused to provide Returning Officers, the security establishment had also declined to spare personnel for security duty during the elections because of their engagement in anti-terrorism operations and the finance ministry had also expressed its inability to provide necessary finances required for holding the elections.

The verdict was given with a 3-2 majority by the reduced bench. A similar decision was given by the SC on a reference made by the President in regard to the interpretation of Article 63A of the constitution. The two dissenting judges had maintained' Article 63-A is a complete code in itself which provides...

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