ISLAMABAD: The Supreme Court Bar Association (SCBA) on Wednesday jumped into the fray, asking the Supreme Court to direct the Election Commission of Pakistan (ECP) to announce a date for general elections within 90 days of the dissolution of National Assembly, as enshrined in Article 224(2) of the Constitution.
Jointly filed by SCBA Secretary Muqtedir Akhtar Shabbir and members Shakeelur Rehman and Bushra Qamar, the petition also asks the apex court to declare the Aug 5 decision of the Council of Common Interests (CCI) and the subsequent Aug 7 notification of the Cabinet Division, granting approval to the digital census, as illegal and in violation of articles 4, 5, 6, 9, 17, 51, 153, 154 and 224 of the Constitution and set these aside.
Drafted by SCBA President Abid Shahid Zuberi, the petition also requests the apex court to suspend the operation of CCI’s Aug 5 decision and order the ECP to announce the election date forthwith.
The petition argues that the CCI was not properly constituted during its meeting on Aug 5, and was thus coram non judice and without jurisdiction. Therefore, it said, all decisions taken pursuant to the meeting were liable to be set aside since the caretaker chief ministers of Punjab and Khyber Pakhtunkhwa had no statutory or constitutional right to participate in the CCI meetings, as they along with their cabinet, were allegedly continuing illegally in office.
The petition argues that the approval of digital census 2023m, less than a week prior to dissolution of the national and two provincial assemblies, had created a constitutional dilemma, which is required to be resolved by the Supreme Court.
Under the Constitution and Elections Act 2017, the primary function of a caretaker government is to hold elections in accordance with the law, but both the caretaker chief ministers of Punjab and KP had miserably failed to hold elections within 90 days of their dissolution as stipulated under Article 224 (2), the petition regretted.
It said it was a blatant violation of the Constitution as well as judgements of the apex court.
The petition argued that according to the digital census issued by the Pakistan Bureau of Statistics, the country’s population now stood at 241.29 million with a growth rate of 2.55pc, whereas varied growth rates had been observed in the four provinces and federal territories since the last census in 2017.
As per Article 51 (5) of the Constitution, the National Assembly seats are to be allocated to each province and the federal capital on the basis of population in accordance with the last preceding census officially published. The last census in the instant case would be the 2023 census published on Aug 7.
However, the petition contended, no seats have been allocated under Article 51 (1) and (3) on the basis of population in accordance with the last preceding census i.e. the impugned decision and impugned notification through a constitutional amendment to this article.
It said the allocation of seats for the National Assembly provided under Article 51 (1) and (3) is based on the population census of 2017, hence the same cannot be considered ‘seat allocation’ on the basis of population in accordance with the last preceding census officially published i.e. impugned decision.
“It is submitted that the outgoing National Assembly failed to adhere to Article 51 (5), and accordingly, ECP cannot initiate the process of delimitation under the Elections Act 2017 as well as Rule(s) 7 and 8 of the Election Rules 2017, as there is no seat allocation based on the CCI decision as delimitation of constituencies of the National Assembly can only be carried out after allocation of seats on the basis of the last preceding census,” the petition argued.
Published in Dawn, August 17th, 2023
