ISLAMABAD: The Supreme Court by a majority of 3:2 directed the Election Commission of Pakistan (ECP) to hold consultations with the president and governor Khyber-Pakhtunkhwa (KP) for the dates to hold the elections of the Punjab and the KP dissolved assemblies.
The chief justice had taken suo moto on a note of Justice Ijazul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi and constituted a nine-member bench for hearing the petitions of the speakers of the Punjab and the KP and the suo moto. The bench heard the case for two days. Justice Yahya Afridi and Justice Athar Minallah, who were part of the larger bench, on 23-02-23, dismissed the petitions.
“Passing any finding or remarks during the proceeding of the petitions by this Court (SC) would not only prejudice the contested claims of the parties in the said petition/ appeal pending before the respective High Court (LHC and PHC) but, more importantly, offend the hierarchical judicial domain of the High Court as envisaged under the constitution,” said Justice Yahya’s note. Justice Minallah had concurred with the opinion of Justice Yahya.
The chief justice, following the February 23 order, constituted a five-judge bench, headed by him, and comprised Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Jamal Khan Mandokhail and Justice Muhammad Ali Mazhar for hearing the petitions and the suo moto. The bench heard the case for two more days and announced its order on Wednesday. Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail wrote the dissenting note.
The majority order directed the Election Commission to use its utmost efforts to immediately propose, a date to the president and the KP governor to comply with the 90-day deadline, stipulated by the Constitution. “If such a course is not available, then the Election Commission shall in like manner propose a date for the holding of the poll that deviates to the barest minimum from the 90-day deadline.”
The federal government was asked, on an immediate and urgent basis, forthwith to provide the ECP with all such facilities, personnel and security as it may require for the holding of the general elections. The court said it is the duty of the provincial governments, acting under the caretaker cabinets, to proactively provide all aid and assistance as may be required by the Election Commission. The duty cast upon the authorities as set out in Section 50 of the 2017 Act must also be discharged forthwith and proactively.
The order said since the general election on a dissolution of a Provincial Assembly has to be held within a time period stipulated by the Constitution, the president or the governor must discharge the constitutional responsibility of appointing a date for the said election swiftly and without any delay and within the shortest time possible.
It noted that in ordinary circumstances the general election to the Punjab Assembly ought to be held on 09.04.2023, the date announced by the president. However, on account of the delay in the emergence of the date for the holding of the general election, it may not be possible to meet the 90-day deadline stipulated by the Constitution.
The Court declared the president’s order dated 20-02-23 with regard to the appointment of the date for holding of KP Assembly constitutionally invalid and set aside it but affirmed the president’s order for giving the date for the election of the Punjab Assembly.
Punjab and Khyber-Pakhtunkhwa provinces were dissolved on 14.01.2023 and 18.01.2023, respectively. In both cases, the then chief ministers tendered advice to their respective governors under Article 112(1) of the Constitution. In the case of the Punjab province, the governor chose not to act on the said advice so that the Assembly stood dissolved on the expiry of 48 hours. In the case of the KPK Province, the Governor did act on the advice and made an order dissolving the Assembly, on 18.01.2023.
The court declared that where the Assembly is dissolved by an order of the Governor, the constitutional responsibility of appointing a date for the general election is the Governor under Article 105. However, in situations where the Assembly is not dissolved by an order of the Governor, the constitutional responsibility of appointing a date for the general election that must follow is to be discharged by the President as provided in terms of Section 57(1) of the Election Act.
Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail, in their joint dissenting note, agreed with the orders of Justice Yahya Afridi and Justice Athar Minallah dated 23.02.2023, and dismissed the petitions of the speakers Punjab and KP and dropped the suo motu proceedings.
They said that hearing the case under Article 184(3) of the constitution is not maintainable as the same constitutional and legal issues seeking the same relief are pending and being deliberated upon by the respective provincial High Courts in Lahore and Peshawar, without there being any inordinate delay in the conduct of the proceedings before them.
“There is no justification to invoke our extraordinary jurisdiction under Article 184(3) to initiate suo motu proceedings or entertain petitions under Article 184(3) of the Constitution, as a single Bench of the Lahore High Court has already decided the matter in favour of the petitioner before the said Hi
gh Court vide judgment dated 10.02.2023 and the said judgment is still in the field. The intra-court appeals (ICAs) filed against the said judgment are pending before the Division Bench of the Lahore High Court (and none of the said petitioners has approached this Court under Article 185(3) of the Constitution),” said the note.
They said that there is no inordinate delay in the proceedings pending before the High Courts; in fact the instant proceedings have unnecessarily delayed the matter before the High Courts. However, considering the importance of the matter we expect that the respective High Courts shall decide the matters pending before them within three working days from today (Wednesday).
Copyright Business Recorder, 2023
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