Mir Hammal Khan v. Election Commission of Pakistan (Civil Appeal No. 1357 of 2024), case concerning election delays

Title and Citation of the Case
Mir Hammal Khan v. Election Commission of Pakistan (Civil Appeal No. 1357 of 2024)

Court:
Supreme court of Pakistan

Judges on the Bench:
Mr Justice Shahid Waheed
Mr justice Irfan Saadat Khan
Mr Justice Aqeel Ahmad Abbasi

Parties:
Appellant: Mir Hammal Khan
Respondent: Election Commission of Pakistan

Facts of the case:
As per Article 224 of Pakistan’s Constitution; general elections are to be held within 60 days of the National Assembly being dissolved. By way of this requirement, the Election Commission of Pakistan (ECP) was obligated to hold a general election within the given time frame post-9 August 2023, when the National Assembly of Pakistan was dissolved with the approval of the President.[1] However, the general elections were not held and the delay was attributed to security and logistical reasons, a new date was put forward for holding the elections: January 2024.

A concerned citizen named Mir Hammal Khan filed a petition challenging the ECP’s decision to delay and not conduct the general elections within the time frame mandated by Article 224. He argued that this delay went against this mandatory requirement and that the election should have been held within 60 days.

The Lahore High Court after hearing the matter and argument ruled in favor of Mir Hammal Khan stating that the ECP’s delay was unconstitutional and none of the reasons put forth by the ECP for the delay were not justification enough for not abiding by the requirement.

The ECP appealed to the Supreme Court of Pakistan, arguing to extend the time frame of the 90-day requirement for holding the general elections, citing the practical and logistical difficulties faced by them as the reason for the delay and seeking relief from the requirement. This was the Civil Appeal No.1357 of 2024.

The Supreme Court dismissed the appeal ruling that; the mandatory requirement of 90 days was non-negotiable and any of the reasons stated did not suffice for the delay not abiding by the requirement and ordering the ECP to hold the elections within the 90-day framework regardless of challenges.

Issues/Questions of Law:

• Whether the delay by the Election Commission of Pakistan was unconstitutional as per the previous and original decision?
• Issue of original affidavits not being produced
• Whether the appeal by the ECP was to be dismissed or approved?

Arguments Summary:

Appellant- Election Commission of Pakistan (ECP):
The ECP claimed that due to logistical and security reasons, the delay in conducting the elections was necessary and not done because of their own decision. They appealed for the Supreme Court to grant them an extension in conducting the general elections giving attention to the reasons put forth by them.

Respondent- Mir Hammal Khan:
The respondent kept his footing on the argument that the delay by the ECP was unconstitutional and the reasons put forth by them were not justification enough for their actions as not holding of the elections faltered democratic progress and led to political unrest.

Decision with detailed reasoning:

Two Issues were looked at in detail, in the judgment; one being that the elections in question (which then took place in February) were not held transparently as well as were delayed outside of the 60-day framework, and were riddled with corruption/illegal practices. Secondly, the original affidavits were not produced which was a mandatory requirement (respondents arguing for the claim of the appellants being faulty) in defence.
The Court held that when such charges which are on a macro level are made they leave no room for a hypothesis or intendment because a “charge of corrupt practice is a quasi-criminal charge” [2] It was held that since the allegation of corruption is a high-level charge the proving of it also has to be on the same standard and the onus is on the accuser of the charge.[3]

The claims in regards to rigging and corruption during the general elections then conducted on February 8, 2024, were prevalent, since this could not have been proved on convincing grounds with credible and contested evidence, it was dismissed and was not to interfere with the judgment by the Election Tribunal of Balochistan (ETB).[4]

The ETB’s decision given in regards to the challenging (done through a petition filed by the appellant)[5] of the notification was further looked at and scrutinized; they had ruled that no corruption was done as the witnesses that came forward and the procedure in which the elections were conducted were thorough and done peacefully. This petition challenging the ECP’s notification was done by the present appellant contesting the reasoning given by the ECP, the court held that the claim put forward was not evidence enough to declare the actions of the ECP as corrupt, but the delay of the general elections was uncontested and the ETB had held that delay did not comply with the requirements and the reasons were not justification enough either.
The Supreme Court agreed with this and held this to be valid and based on facts.

The original affidavits by the appellant were not produced and presented in court, they were not authorized on oath by the commissioner and were notarized only. It was held in this regard that it is a settled fact of law that when a document is only marked or identified it cannot be considered as valid evidence. [6] + [7] Hence the documents were prevented from being used and kept away from interfering with the case at hand.
Hence, the appeal made by the ECP to extend the time frame for conducting general elections was dismissed, for no reasonable grounds were brought to light and the appeal was found to be without merit.

Ratio Decidendi

• The requirement under Article 224 of the Constitution of Pakistan is mandatory and non-negotiable under any circumstances.

Implications

This decision has overarching and long-term implications in terms of the political landscape and backlog in terms of procedural requirements that are to be followed by political institutions and bodies. This case sets a precedent for the fact that if there is a constitutional requirement, as is in this case of holding general elections, it is to be abided by and complied with regardless of political unrest or security issues to ensure political development and following of laws and constitutional requirements.
In addition to this, this case has helped reinforce that affidavits and witness statements are to be attested and signed rather than just marked or identified for them to be submitted and used subsequently as valid evidence, this ensures that court procedure and hearings remain authentic and fall within the legal ambit guaranteeing fairness and justice the right way.

Conclusion

In conclusion, the Supreme Court’s ruling in Civil Appeal No.1357 of 2024, reinstated that the constitutional requirement of holding the general elections within the 60-day framework was obligatory and non-refutable. It was to be complied with regardless of all justifications and challenges that would pose hurdles in the compliance of this requirement.
It was ruled that in light of this, the Election Commission of Pakistan’s act and delay in holding of the elections were unconstitutional and no ground presented was justification enough for the detriment caused in political development by way of postponing the elections was enough or valid under any circumstances.

References

1. 224 Time of election and by-election.
   (1) A general election to the National Assembly or a Provincial Assembly shall be held within sixty days immediately following the day on which the term of the Assembly is due to expire, unless the Assembly has been sooner dissolved, and the results of the election shall be declared not later than fourteen days before that day.
   https://www.pakistani.org/pakistan/constitution/part8.ch2.html
2. Muhammad Saeed v Election Petitions Tribunal, West Pakistan and others ( PLD 1957 SC (Pak) 91)
3. Khan Muhammad Yousaf Khan Khattak v S.M. Ayub and 2 others ( PLD 1973 SC 160)
4. Date announced for elections, official document.
   https://ecp.gov.pk/notifications/ecp-announces-8th-february2024-as-poll-date-for-the-general-elections-to-the-national-assembly-of-pakistan-and-provincial-assemblies-of-punjab-sindh-khyber-pakhtunkhwa-and-balochistan
5. Updated Election Act 2017- Section 139
   https://ecp.gov.pk/storage/files/2/Elections%20Act%202017%20updated/Updated%20Elections%20Act%202017-231011-105435.pdf
6. Col. (Rtd) Ghazanfar Abbas Shah v Mehr Khalid Mehmood Sargana
7. Azhar Abbas other v Haji Tahir Abhas and another 2021 CLC 1351