Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial on Wednesday constituted a nine-member larger bench to hear suo motu matter regarding the announcement of date to hold elections for Punjab and Khyber-Pakhtunkhwa assemblies.
The larger bench, comprising Justice Ijaz ul 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, Justice Athar Minallah and CJP himself, will take up the case on February 23 at 2pm.
The CJP, in its written order, 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 KP 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. On Thursday, a division bench of the Supreme Court had referred the matter to CJP Bandial for invoking suo motu jurisdiction, warning that there was an eminent danger of violation of the Constitution. Hearing a petition filed by Ghulam Mehmood Dogar, who had been repatriated to the federal government, the court stressed that it was refraining from passing on order on the election matter, because it was not before the bench.
“We, therefore, consider it a fit case to refer to the Hon’ble CJP to invoke the suo motu jurisdiction … under Article 184(3) of the Constitution, said the order issued by a two-member bench, comprising Justice Ijazul Ahsan and Justice Mazahar Ali Akbar Naqvi. “… there is an eminent danger of violation of the Constitution which we are under a constitutional, legal and moral duty to defend,” the order said, adding: “Let the office place this file before the Hon’ble CJP for appropriate orders.”
Three questions before SC bench
Invoking the suo motu jurisdiction, the Supreme Court has asked the nine-member bench to consider three questions, if deemed appropriate.
1. 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?
2. How and when is this constitutional responsibility to be discharged?
3. What are the constitutional responsibilities and duties of the federation and the province with regard to the holding of the general election?
The nine-member larger bench
1. Justice Umar Ata Bandial
2. Justice Ijaz Ul Ahsan
3. Justice Syed Mansoor Ali Shah
4. Justice Munib Akhtar
5. Justice Yahya Afridi
6. Justice Sayyed Mazahar Ali Akbar Naqvi
7. Justice Jamal Khan Mandokhail
8. Justice Muhammad Ali Mazhar
9. Justice Athar Minallah
