Chief Justice of Pakistan (CJP) Umar Ata Bandial on Wednesday 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.
Elections are to take place in both provinces after previous PTI governments had dissolved their assemblies before the expiry of their five-year mandated term on the orders of party chairman Imran Khan.
It is pertinent to mention that the suo motu notice comes two days after President Dr Arif Alvi on Monday unilaterally announced April 9 as the date for holding elections in both the provinces after his invitation for consultations on the matter was turned down by the Election Commission of Pakistan (ECP).
The CJP has constituted a nine-member bench to hear the case and ordered the matter to be fixed for hearing tomorrow (Thursday) at 2pm.
The bench comprises the CJP, 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.
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 the notice, the CJP said two SC judges, in an order dated February 16, had referred the matter to him for suo motu proceedings. He noted that separate pleas had also been filed in the apex court regarding the delay in holding polls.
He further noted that the Lahore High Court (LHC) had directed the ECP to immediately announce the date for polls in Punjab. He said that the Punjab governor and the ECP had filed intra-court appeals which were currently pending.
“It seems to be the governor’s case that since he did not act on the advice tendered by the then-chief minister and made no order dissolving the assembly, he does not have the responsibility or authority to appoint the date for the general election. The election commission has, it appears, also taken the position that under the Constitution it has no authority to appoint the date for a general election, though it has categorically stated (as reported in the public media, both print and electronic) that it is fully committed to conducting the said election in accordance with the Constitution.”
He further said that the KP governor had also not fixed a date for holding polls and a petition in this regard was pending before the Peshawar High Court.
CJP Bandial went on to say that the president had taken the position that he had the authority and responsibility for fixing a date, and had announced that polls would be held on April 9.
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.
“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.
Delay in holding 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 an election date 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.