The Supreme Court will resume hearing its suo motu proceedings regarding the delay in the announcement of a date for elections in Punjab and Khyber Pakhtunkhwa on Monday.
A nine-member bench, headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and also comprising 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, will take up the case at 11:30am.
The suo motu notice was taken by the top judge after President Dr Arif Alvi earlier this week unilaterally announced April 9 as the election date in both provinces after his invitation for consultations on the matter was turned down by the Election Commission of Pakistan (ECP).
At the previous hearing, the coalition parties — PML-N, PPP and JUI-F — had presented a note in the apex court asking two SC judges, Justice Ahsan and Justice Naqvi, to recuse themselves from the case.
The parties had further said that the two judges should never be part of any bench hearing any case involving these three parties and their leadership.
Coalition seeks full court for suo motu case
On Saturday, the coalition government petitioned the Supreme Court for the formation of a full court — comprising all judges except Justice Ahsan and Justice Naqvi — to conduct the suo motu proceedings.
The joint petition, filed by senior counsel Farooq H. Naek, Mansoor Usman Awan and Kamran Murtaza on behalf of the PPPP, PML-N and JUI-F, respectively, says the prayer has been made “in the best interest of justice and to strengthen the people’s confidence in the Supreme Court”.
It is imperative that the full court — minus the two judges, who have already disclosed their minds in the matter — be constituted to hear the case in the interest of justice and fairness, contends the petition, which has been moved under Order 33 Rule 6 of the Supreme Court Rules 1980.
The petition argued that when the case was taken up by the nine-judge bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial on Feb 23, Justice Jamal Khan Mandokhail read out a note and raised objections to the effect that since the two-member bench consisting of Justice Ahsan and Justice Naqvi had already rendered a definite opinion on the issue as recorded in the court’s Feb 16 order, it would amount to a violation of Article 10A if they remain part of the larger bench.
Justice Mandokhail, the ruling parties recalled, had further stated that it was not appropriate to refer the matter to the CJP under Article 184(3) and that the suo motu action taken by the latter was not justified. Later, the Supreme Court on the same date issued notices to the relevant stakeholders and that the applicants appeared before the court on Feb 24 through their counsel and read a joint statement, seeking the recusal of Justice Ahsan and Justice Naqvi from any matter involving the PPPP, PML-N and JUI-Pakistan and their leadership.
According to the petition, these circumstances have raised several questions of immense legal, constitutional and public importance as recorded in the CJP’s note while invoking suo motu jurisdiction.
Suo motu notice
Last week, the top judge took suo motu notice of the delay in holding polls in Punjab and Khyber Pakhtunkhwa, saying that there appeared to be a “lack of clarity” on the matter.
In the notice, CJP Bandial said that the SC bench would consider the following questions:
- 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?
In his order, the CJP observed that there was, to put it shortly, a lack of clarity on a matter of high constitutional importance.
In his order, the CJP observed that there was, to put it shortly, a lack of clarity on a matter of high constitutional importance.
The issues raised require immediate consideration and resolution by the Supreme Court. The decision was taken after a note was presented to the CJP against the backdrop of a Feb 16 order by a two-judge bench asking the chief justice to invoke a suo motu initiative in this regard.
“Several provisions of the Constitution need to be considered, as also the relevant sections of the Elections Act 2017. In particular, the issues involve, prima facie, a consideration of Article 17 of the Constitution and enforcement of the fundamental right of political parties and the citizens who form the electorates in Punjab and Khyber Pakhtunkhwa to exercise their right to elect representatives of their choice to constitute fresh assemblies and the provincial cabinets,” the SC order said.
“This is necessary for governments in the two provinces to be carried on in accordance with the Constitution,” observed the CJP, adding that these matters involve the performance of constitutional obligations of great public importance apart from calling for faithful constitutional enforcement.
“There is a material development in the last few days,” the CJP noted, adding that it appeared that subsequent to certain correspondence initiated by President Arif Alvi with the Election Commission of Pakistan, the former had taken the position that it was he who had the authority and responsibility for appointing a date for the general elections, in terms as provided in Section 57(1) of the Elections Act.
The order said: “By an order made on Feb 20, the President had appointed April 9, 2023, to be the date for the holding of the general elections in Punjab as well as KP and had called upon ECP 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 general elections which was a first step towards the holding of the elections, has still not been resolved, the judge remarked.
“Constitutional authorities appear to hold divergent and perhaps even conflicting, views on the issue, and 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.
“It is also to be noted that statements attributed to ECP have appeared in the public record to the effect 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.”
The CJP observed that in the cases of Punjab and KP, the then chief ministers tendered advice to their respective governors under Article 112(1) of the Constitution to dissolve the assembly.
Punjab, KP election limbo
The Punjab and KP assemblies — where the PTI had governments — were dissolved on January 14 and January 18, respectively, in an attempt to pave the way for snap polls.
On Jan 24, the ECP wrote letters to the principal secretaries of Punjab and KP governors, suggesting elections in Punjab between April 9 and 13, and in KP between April 15 and 17.
At the same time, the PTI had on Jan 27 approached the LHC seeking orders for the Punjab governor to immediately announce a date for an election in the province following which the court had directed the ECP to immediately announce the date for elections after consultation with the governor.
Meanwhile, President Arif Alvi had also urged the ECP on Feb 8 to “immediately announce” the date for polls in KP and Punjab and put an end to “dangerous speculative propaganda” on both the provincial assembly and general elections.
However, so far, the governors of the two provinces have refrained from providing any date for the polls on several pretexts.
Last week, President Alvi had invited Chief Election Commissioner (CEC) Sikandar Sultan Raja for an urgent meeting regarding consultations on election dates but the ECP told him he had no role in the announcement of dates for general elections to provincial assemblies and the commission was aware of its constitutional obligation in this regard.
Subsequently, the president on Monday unilaterally announced April 9 as the date for holding general elections for the Punjab and KP assemblies.
The move drew sharp criticism from his political opponents, who accused him of acting like a PTI worker while the ECP said it would announce the poll schedule only after the “competent authority” fixes the date.
