CJP takes suo motu notice on who to give polls date

ISLAMABAD: Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial on Wednesday took suo motu notice on the issue of election in Punjab and Khyber Pakhtunkhwa (KP) provinces and constituted a nine-member bench headed by him which will hear the matter today (Thursday) at 2 pm.

Besides the CJP the bench consists of Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Athar Minallah.

“Having considered the material placed before me, I am of the view that the issues raised require immediate consideration and resolution by this Court.

“Accordingly, I hereby invoke the suo motu jurisdiction of the Court under Article 184(3) of the Constitution and constitute a nine-member Bench to consider, if so deemed appropriate, inter alia, the questions,” said a press release quoting Justice Bandial uploaded on SC website late evening on Wednesday.

The chief justice said that the bench will consider questions as to who has the constitutional responsibility and authority for appointing the date for the holding of a general election to a provincial assembly upon its dissolution in the various situations envisaged by and under the Constitution. How and when is this constitutional responsibility to be discharged? What are the constitutional responsibilities and duties of the federation and the province with regard to the holding of the general election?

The CJP directed his office to register an appropriate suo motu case and fix the same along with the petitions pending in the court and fix the same before the bench today (Thursday) at 2:00 pm.

It was stated in the press release that several provisions of the Constitution need to be considered, as also the relevant sections of the Elections Act. In particular, the issues involved, prima facie, a consideration of Article 17 of the Constitution and enforcement, inter alia, of the fundamental right of political parties and the citizens who form the electorates in the Punjab and KP provinces to exercise their right to elect representatives of their choice to constitute fresh assemblies and provincial cabinets.

“This is necessary for government in the two provinces to be carried on in accordance with the Constitution,” it said, adding that these matters involve the performance of constitutional obligations of great public importance apart from calling for faithful constitutional enforcement.

It is pertinent to mention here that a two-member bench of the apex court comprising Justice Ijazul Ahsan and Justice Mazahar Ali Akbar Naqvi the other day, while hearing a matter of transfer of former Punjab CCPO Ghulam Mahmood Dogar, had referred the chief justice issue of elections in Punjab and KP provinces for taking suo motu notice under Article 184(3) of the Constitution.

The context of the request is that the Punjab and KP Assemblies were dissolved on 14-01-2023 and 18-01-2023 respectively, says the press release, adding that in both cases, the then chief ministers tendered advice to their respective governors under Article 112(1) of the Constitution to dissolve the Assembly.

In the case of the Punjab province, the governor chose not to act on the said advice, so the Assembly stood dissolved on the expiry of 48 hours, on the date mentioned.

In the case of the KP, the governor did act on the advice and made an order dissolving the Assembly.

The press release stated that almost immediately after the dissolution of both assemblies a question was raised as to who had the constitutional responsibility and authority to appoint the date of the general election to obtain the mandate of the electorate and elect fresh assemblies.

It is to be noted that Article 224(2) requires that a general election be held within a period of 90 days after the dissolution, and the use of the word “shall” indicates that this is, prima facie, a constitutional imperative, the press release said.

“In respect of the appointment of the date for the holding of the general elections to the dissolved provincial assemblies there is Constitution Petition (Islamabad High Court Bar Association vs Election Commission of Pakistan) already filed and pending in this Court prior to the making of the request by the Bench,” it said.

A petition has also been jointly filed by Punjab Assembly Speaker Muhammad Sibtain Khan and KP Assembly Speaker Mushtaq Ahmad seeking the same relief.

Apart from the foregoing, the chief justice noted, it appears that several petitions were filed in the Lahore High Court seeking compliance with the constitutional obligation imposed by Article 224(2).

By judgment dated 10-02-2023 a single judge in chambers concluded that the authority lay with the Election Commission of Pakistan and called upon the same “to immediately announce the date of election of the Provincial Assembly of Punjab with the Notification specifying reasons, after consultation with the governor of Punjab, being the constitutional head of the province, to ensure that the elections are held not later than ninety days as per the mandate of the Constitution.”

“Reportedly both the governor and the Election Commission have filed Intra Court Appeals which are pending before a learned Division Bench of the High Court,” the press release stated, adding that it seems to be the governor’s case that since he did not act on the advice tendered by the then chief minister and made no order dissolving the Assembly, he does not have the responsibility or authority to appoint the date for the general election.

The chief justice observed that the Election Commission has, it appears, also taken the position that under the Constitution it has no authority to appoint the date for a general election, though it has categorically stated (as reported in the public media, both print and electronic) that it is fully committed to conducting the said election in accordance with the Constitution.

At the same time, the KP governor has also not appointed a date for the holding of the general election and a petition in this regard is pending before the Peshawar High Court.

The SC press release said: “There is another material development in the last few days. It appears that subsequent to certain correspondence initiated by the President of Pakistan with the Election Commission, the President has taken the position that it is he who has the authority and responsibility for appointing a date for the general elections, in terms as provided in section 57(1) of the Elections Act, 2017.

“By an order made on 20.02.2023, the President has appointed 09.04.2023 to be the date for the holding of the general elections in both Provinces and has called upon the Election Commission to fulfil its constitutional and statutory obligations in this regard.”

More than one month has now elapsed since the dissolution of the provincial assemblies and it seems prima facie that even the matter of appointing the date of the general elections which is the first step towards the holding of the elections, has still not been resolved. Constitutional authorities appear to hold divergent, and perhaps even conflicting, views on the issue, the SC said.

Thus, several federal ministers appear to have contested the authority asserted by the president.

Since ministers act under the constitutional rule of collective responsibility it appears, prima facie, that this is the view taken by the federal cabinet as a whole.

There is, to put it shortly, a lack of clarity on a matter of high constitutional importance. It is also to be noted that statements attributed to the Election Commission have appeared in the public record to the effect that it is not being provided with the requisite assistance and support, in particular by the provision of necessary funds, personnel and security, as would enable it to hold the general elections in accordance with the Constitution.