PTI approaches court against Governor, ECP

Humayun Khan
PESHAWAR: Pakistan Tehreek-e-Insaf (PTI) approached Peshawar High Court (PHC) seeking to direct Election Commission of Pakistan to complete all activities mentioned in election program as per Section 57 (2) of the Election to hold election between “15th April 2023 to 17th April 2023” for Khyber Pakhtunkhwa Assembly following its premature dissolution.
The writ seeking to direct the Governor Khyber Pakhtunkhwa to act according to the provision of Constitution of Pakistan and his assertion that the decision regarding holding of election has to be made by Intelligence Agencies and other agencies in the light of report of establishment may be declared un constitutional, illegal, unlawful, without jurisdiction and without legal effect.
Governor of Khyber Pakhtunkhwa, Election Commission of Pakistan (ECP) and Government of Khyber Pakhtunkhwa through Chief Secretary were made respondents while PTI’s provincial president Muhammad Atif Khan filed the writ petition before PHC.
The counsel Muzzam Butt Advocate stated in the writ that to direct respondents to immediately announce the date of election for the Provincial Assembly of the Khyber Pakhtunkhwa so as to ensure that the election is held not later than ninety days of dissolution of the Assembly.
The writ stated that under Article 105 (3)(1)(a) of the Constitution, consequent to the dissolution of assembly by the Governor, he must appoint a date for the holding of general election, not later than ninety days from such dissolution, Such constitutional obligation has been expressly denied by the respondent Governor and that too on the ground that the decision regarding holding of election has to be made by Intelligence agencies and other agencies in the light of report of establishment; such assertion of the respondent Governor is in conflict with the provision of the Constitution and clearly transpire intent of mala-fide conceived notion of the Governor in the colorful exercise of his authority.
In terms of Article 224(2) of the Constitution, the period ninety days start from 18-01-2023 and as such the poll clay could not be taken beyond 17-042023, likewise, for completion of all activities cited in Election program as mentioned in Section 57(2) of the Election Act, 2017; minimum 54 days are to be required; that being the situation when the respondent Governor was requested by the Election Commission to appoint the date of poll between 15th April 2023 to 17th April 2023, the only act to be performed by him was to fix a date of the election as the Constitutional Obligation, the petition added.
In the sovereign Pakistan, where sovereignty belongs to ALLAH alone and the people exercised such authority as a secrecy trust, the state must exercise its power and authority through the chosen representative of the people, whereas the respondent Governor in order to deny the principles of democracy and social justice is unwilling to appoint the day of poll on the ground that the leadership of petitioner had denied shaking hands with the opposition leader and now embarrassing himself demanding election from previous opposition leader transpire that by taking the advantage of his position in order to make political scoring he can go to any extend in violation of the constitutional provisions and election laws ignoring Article 5 of the Constitution which demands loyalty to state, Constitution and the Law, now whereas it is the fundamental right of the people of the province to be represented through their chosen representative to uphold the sovereignty of State, Constitution of Pakistan and Principles of social justice. Moreover, the Governor is under oath having sworn the commitment of upholding the Constitution, as such it would be in accordance with law and the Constitution that the respondent may be required to fix date polling. The Respondent cannot exercise his Constitutional powers according to his whims.
The Respondent is tasked with a critical Constitutional task. This failure to perform the same is completely unjustifiable under the Constitution and is frustrating the whole Constitutional scheme of elections. The Respondent is depriving the petitioner (PTI) of its fundamental right guaranteed under Article 17 of the Constitution, which, according to the law declared by the August Supreme Court includes the right of a political party to contest and participate in elections. Unless the date of the election is announced, the exercise of this right will be frustrated.
The date of election for the Provincial Assembly cannot be left open because not only would it be in violation of the Constitution and amount to its subversion but it would also be against the basic principles of democracy and contrary to the fundamental rights of the people of Pakistan.
The date of election is to be announced by the respondents immediately or if so deemed fit and necessary by appropriate directions of PHC to the President of Pakistan/ Election Commission of Pakistan, as the case may be. That there is no other adequate alternate remedy available to the petitioner to challenge the unconstitutional omission of the respondents; but, this writ petition.