• SC bench sees ‘danger’ of violation of an ‘unambiguous constitutional command’
• CEC claims attempts being made to curtail watchdog’s authority

ISLAMABAD: Expressing displeasure over the delay in the announcement of the election date for polls in Punjab within the stipulated period, a two-member bench of the Supreme Court on Thursday referred the matter to Chief Justice Umar Ata Bandial for suo motu proceedings.

The CJP may consider it appropriate after invoking jurisdiction under Article 184(3) to constitute a bench for taking up the matter, said a six-page order issued after the proceedings with a direction to the registrar’s office to place the matter before the CJP.

“We are of the view that the matter brought to our notice during these proceedings raises a serious question of public importance with reference to enforcement of the fundamental rights conferred by Chapter-1 of Part-II of the Constitution,” observed the bench comprising Justice Ijazul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi.

The elections issue cropped up during the hearing of a case regarding the transfer of Lahore police chief Ghulam Mehmood Dogar and will again be taken up on Friday (today), but this time with Justice Munib Akhtar would also become a member of the bench.

Chief Election Commissioner (CEC) Sikandar Sultan Raja who was summoned by the court is also required to appear on Friday since his request to dispense with his presence was not entertained.

This is the second consecutive day when the issue of elections in Punjab surfaced during the proceedings. On Wednesday, a CJP-led bench expressed its surprise over the delay in the election date.

The court order stated that since no progress appears to have taken place regarding the announcement of the election date in Punjab, there was an “eminent danger of violation of a clear and unambiguous constitutional command”.

During the hearing, the CEC expressed disappointment and claimed that attempts were being made to curtail the authority of the Election Commission of Pakistan (ECP).

“How could elections be held when the judiciary is not ready to sanction the judicial officers for election duties as returning officers which it did in the 2018 elections, the military has declined the request to provide security for the elections, whereas the federal government seems not ready to allocate funds for the conduct of the elections,” he said.

When Justice Ahsan inquired whether the government had conveyed to ECP about the difficulty, he replied in the affirmative. During the hearing, the CEC expressed the apprehension that for the conduct of free and fair elections, the transfer of certain commissioners, deputy commissioners, regional police officers and district police officers was necessary but pleaded that ECP will not issue transfer orders in case the apex court commands it to do so. Justice Ahsan observed that the court will not issue any such order.

Earlier, Attorney General for Pakistan (AGP) Shehzad Ata Ellahi pointed out that a notification had been issued for the repatriation of the petitioner Ghulam Mehmood Dogar to the federal government which was suspended by a two-member bench of the Federal Service Tribunal (FST) in Lahore on Nov 10, 2022. But another two-member bench of the same tribunal suspended that order through a subsequent Nov 24, 2022 order which had been challenged before the Supreme Court through the present appeal which suspended the Nov 24, 2022 order on Dec 2, 2022.

He contended that the federal government had nothing to do with the latest transfer of the petitioner and pointed out that the Jan 23, 2023 notification regarding the transfer of the petitioner with a direction to report to the Services and General Administration Department (SGAD) Lahore for further orders had been issued by the governor.

Additional Advocate General Malik Waseem Mumtaz informed that the transfer was done after the approval of the ECP. The CEC recalled that a request was received from the Punjab government for the transfer of the petitioner and permission for such transfer was granted.

According to the court, he was not in a position to explain to the court without the availability of the relevant record and undertook to file the requisite documents.

When the court asked CEC if he was aware of the fact that the matter of transfer of the petitioner was sub judice, the CEC replied that such a fact was not brought to his notice either by Punjab or by the functionaries of the ECP.

During the course of arguments, the order recalled that transfers and postings under the facts and circumstances of this case have a direct reference to the elections which were required to be held within 90 days of the dissolution of the Punjab Assembly. It was submitted that although transfers/postings were being undertaken, the election date had not been announced which constitutes a violation of Article 224(2).

The CEC submitted that the ECP was committed to fulfil its constitutional obligations but it lacked jurisdiction to announce a date for the elections which, according to him, fell within the domain of the governors of the respective provinces.

Published in Dawn, February 17th, 2023