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CJP Umar Ata Bandial takes suo motu notice on delay in Punjab, KP elections; 9-memebr larger bench to conduct hearing tomorrow

ISLAMABAD, Feb 22 (SABAH): Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial on Wednesday took a suo motu notice of an apparent delay in the elections of Punjab and Khyber Pakhtunkhwa (KP) and also formed a 9-memebr larger bench to hear the case today (Thursday) at 2:00 PM.

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

The matter was sent to the chief justice seeking the suo motu by a two-member Supreme Court bench comprising Justice Ijazul Ahsan and Justice Sayyed Mazahir Ali Akbar Naqvi in the Lahore Capital City Police Officer (CCPO) Ghulam Mehmood Dogar case on February 16.

The Supreme Court added that the two provincial assemblies were dissolved on January 14 and 18, respectively. “Under Article 224 (2), polls should be held within 90 days of the assembly dissolution. The Constitution mandates that polls be held within 90 days.”

The country’s top court also said that requests for the date of elections were also received from the Islamabad High Court bar, and speakers of KP and Punjab assemblies.

The CJP said that over a month had passed since the two provincial assemblies were dissolved, adding that “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. 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,” he said.

“There is, to put it shortly, a lack of clarity on a matter of high constitutional importance,” CJP Bandial said.

He noted that statements attributed to the electoral watchdog showed that it was not being provided 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”.

In light of the above, the CJP said: “I am of the view that the issues raised require immediate consideration and resolution by this court. Several provisions of the Constitution need to be considered, as also the relevant sections of the Elections Act.”

“In particular, the issues involve, 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 [the] government in the two provinces to be carried on in accordance with the Constitution.

“These matters involve the performance of constitutional obligations of great public importance apart from calling for faithful constitutional enforcement,” the CJP said.

The CJP, in its written order on Wednesday, said that 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. 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,” the order stated.

It said that 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 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.”

The order also mentioned the recent communication between President Dr. Arif Alvi and the ECP.

“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 fulfill its constitutional and statutory obligations in this regard.”

“Having considered the above, and the material placed before me, I am of the view that the issues raised require immediate consideration and resolution by this court. Several provisions of the Constitution need to be considered, as also the relevant sections of the Elections Act. In particular, the issues involve, 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 K-P provinces to exercise their right to elect representatives of their choice to constitute fresh assemblies and provincial cabinets.”

The CJP said that this is necessary for government in the two provinces to be carried on in accordance with the Constitution. “These matters involve the performance of constitutional obligations of great public importance apart from calling for faithful constitutional enforcement,” the order maintained.

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 set out below.

The questions referred for the consideration of the Honorable Bench if so deemed appropriate are, inter alia, as follows:  

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 Elections?

It is said in the notice that the office is directed to register an appropriate Suo Motu Case in the above terms and fix the same along with the petitions pending in the Court as noted above, and fix the same before the Honorable Bench on 23,02,2023 at 2:00 PM.