UMAR ATA BANDIAL, C.J.---Pursuant to an election schedule notified on 11-1-2013 by the respondent No,1 Election Commission of Pakistan ("ECP"), the petitioner No,1 is a candidate in bye- election scheduled for 18-2-2013 for MPA seat (PP-239, Vehari-VIII) which fell vacant on 27-11-2012 on account of the demise of the incumbent legislator. The term of the Punjab Provincial Assembly ("Assembly") expires on 7-4-2013 leaving 131 un-expired days of the legislative term from the date when the aforenoted vacancy occurred. Under the provisions of Article 224(4) of the Constitution, a bye-election to a general seat in a National Assembly or a Provincial Assembly is to be held where a vacancy has occurred not less than 120 days before expiry of the term of that Assembly. The said constitutional provision is reproduced below: "224 (1)
(2)
(3)
(4) When, except by dissolution of the National Assembly or a Provincial Assembly, a general seat in any such Assembly has become vacant not later than one hundred and twenty days before the term of that Assembly is due to expire, an election to fill the seat shall be held within sixty days from the occurrence of the vacancy."
2. The present petition is filed in the background of frequent governmental comment that the likely date of dissolution of the National and Provincial Assembly is in the month of March-2013. On that premise, there would on any date in March 2013 be less than 60 days left before the end of the legislative term of the Assembly. It is argued by the learned counsel for the petitioner that under the aforenoted provision of the Constitution two time limits have been laid down for a bye-election to be held. Firstly, that a vacancy in an Assembly occurs on a date that is not less than 120 days prior to the date of expiry of the term of that Assembly. Secondly, that a bye-election must be held within 60 days of the date of occurrence of the said vacancy. Thus impliedly requiring an un- expired legislative term of not less than 60 days for a newly elected legislator to discharge his office. By that limitation, it is argued that the Constitution intends that a bye-election ought to be held at least 60 days prior to the end of the legislative term of an Assembly.
3. In the present case, however, the ECP could not for administrative reasons fix the date of the election within 60 days of the occurrence of vacancy on 27-11-2012 and consequently, according to the schedule announced on 11-1-2013, the election date, namely, 18-2-2013 is only 47 days before the expiry of the legislative term of the Assembly. The said un-expired term may be further shortened if the Assemblies are dissolved sooner by the competent authority.
4. Consequently, learned counsel for the petitioner has urged that on account of the implied mandate in the Constitution that a bye- election should be held 60 days prior to the expiry of the legislative term of the Assembly, the present bye-election scheduled only 47 days before the date of such expiry offends the constitutional principle and ought not to be held. Apart from being unconstitutional, such an exercise would waste public as well as private resources and would serve no legislative purpose as a very short period is left for the Assembly to be dissolved.
5. Learned DAG has opposed the contention on the ground that the voters in the constituency have a right to be represented. The unexpired duration of a legislative assembly is merely indicative whereas the public issues arising for debate in the Assembly are far more important for the purpose of the Constitution. Consequently, he submits that even if less than 60 days are left in the remaining term of the Assembly, that does not constitute an illegality and therefore this Court should not interfere with the schedule of bye election issued by the respondent ECP.
6. The report/parawise comments filed by the ECP state that the delay in holding the bye election has occurred on account of administrative reasons and such delay is condonable under Article 254 of the Constitution.
7. The Court has considered the legal provision in issue, namely, Article 224(4) of the Constitution.
This provision does not expressly mandate/require a minimum un-expired legislative term of 60 days of the Assembly in which a vacancy has occurred in order for a bye-election to A be held to fill such vacancy. However, it is clear from the constitutional provision that the period of the un- expired legislative term of the Assembly is a crucial factor, which if less than 120 days upon occurrence of the vacancy, does not contemplate a bye-election to be held to fill such vacancy.
8. Consequently, by order dated 8-2-2013, this Court asked the ECP to state whether the abovenoted aspect of the case had been considered by ECP before fixing the date of election in the present case, namely, 18-2-2013. The statement filed today by the Provincial Election Commission clearly states that said facet of Article 224(4) ibid was noted by the ECP but on account of the fact that the vacancy had occurred more than 120 days prior to the expiry of the legislative term of the Assembly, the ECP decided to hold the election because the constitutional provision in this regard is emphatic in its terms.
9. The issue raised by the petitioner involves adherence to an inferred limitation contained in Article 224(4) and therefore concerns the exercise of discretion belonging to the ECP. This Court has in its judgment reported as Muhammad Azhar Siddique v. Government of Punjab (PLD 2010 Lahore 138) held that the ECP performs its functions autonomously except where exercise of its discretion suffers from illegality or unreasonableness in which event this Court may interfere with the performance of such functions. Reference is made to the following observation in the said precedent: "Therefore, the discretion of the honOurable CEC in directing the issuance of schedule of elections or bye-elections cannot be absolute but is fettered by such constrains that are imposed under the law. The ambit of his discretion may vary depending on the nature of a case; it would be limited in the exercise of judicial functions by the honourable CEC as laid down in Raheem Shah v.
The Chief Election Commissioner of Pakistan PLD 1973 SC 24. However, such discretion would be much wider where his autonomy to apply his mind to his constitutional function is involved. In this context his discretion as a constitutional functionary shall be exercisable reasonably, fairly and in terms of the statute. The satisfaction of the said tests shall suffice to avoid interference in judicial review. Reference in this behalf may be made to Federation of Pakistan v. Haji Muhammad Saif Ullah Khan PLD 1989 SC 166."
' In the present case, rather than 60 days, the un-expired duration of the term of the legislative Assembly after the date of election on 18-2-2013 is 47 days. The consideration whether the assembly may be dissolved sooner by the political authorities is not material for the purposes of Article 224(4) of the Constitution. However, to the mind of this Court it is relevant that the available un-expired legislative term of the Assembly on the date of a bye-election should be of substantial duration or else the election would be a waste of public money.
10. The Provincial Election Commissioner present in the Court informs that seven bye- elections are being held on 18-2-2013 which roughly carry a cost of Rs,30.0 million per election. Notwithstanding the right of the voters to be duly represented in an assembly, the Constitution does envisage their non- representation where the vacancy occurs on a date less than 120 days prior to the expired legislative term. Some guidance needs to be derived from that constitutional criterion to balance financial cost with non-representation of a constituency.
11. In the present case, the un-expired legislative term of the Assembly is only 13 days short of the implied minimum term of 60 days. As the constitutional deadline in the matter is not express, therefore, the ECP possesses discretion to strike the balance. According to the report filed in Court, ECP has applied its mind to the implied time limitation for holding a bye-election imposed by Article 224(4) of the Constitution. According to the Court's appreciation the ECP has exercised its discretion in accordance with the constitutional provisions and also reasonably. Nevertheless, it may be observed that the present facts do represent a borderline case. Had the un-expired legislative term on the date of bye election been much shorter, say 40 days or less, there would have been a clear case for the ECP to decline a bye election. Otherwise, the Court would have interfered. Therefore, the present case is one where the exercise of discretion by the ECP cannot be said to be illegal. Accordingly, this is not a case for the Court's interference.
12. In view of the foregoing, this petition is disposed of.