Chief Justice of Pakistan (CJP) Umar Ata Bandial on Wednesday night took suo motu of a delay in announcing a date for elections in Punjab and Khyber-Pakhtunkhwa, forming a nine-member larger bench to hear the case from today (Thursday).
Comprising the CJP, as well as Justices Ijazul Ahsan, Syed Mansoor Ali Shah, Munib Akhtar, Yahya Afridi, Mazahar Ali Akbar Naqvi, Jamal Khan Mandokhail, Muhammad Ali Mazhar, and Athar Minallah, the first hearing for the bench has been fixed for Thursday at 2 p.m. Last week, a two-member bench of Justices Ahsan and Naqvi had urged the CJP to take suo motu of the election delay in an unrelated case pertaining to the transfer of Lahore Capital City Police Officer Ghulam Mehmood Dogar.
According to a statement issued by the apex court, the bench would consider three key questions with regards to elections in Punjab and KP following the dissolution of their assemblies by the Pakistan Tehreek-e-Insaf (PTI) in mid-January. First, it would determine who has the constitutional responsibility and responsibility to issue a date for holding elections to a provincial assembly once it has been dissolved. Second, it would determine how and when the constitutional responsibility to fix a date for polling is to be discharged and third, it would deliberate on the constitutional responsibilities and duties of the federation and the province with respect to conducting general elections.
The suo motu notice comes within days of President Arif Alvi unilaterally fixing April 9 as the date for elections to the provincial assemblies of Punjab and KP. While he has maintained he issued the date to “avoid a breach of the Constitution,” the move has triggered controversy, with members of the government declaring it “unconstitutional and illegal,” as the Constitution only empowers the president to declare a polling date for the National Assembly.
The Election Commission of Pakistan (ECP), meanwhile, sought guidance from the attorney general of Pakistan and other legal experts on the president’s announcement but has yet to issue any formal statement on the results of that discussion.
The CJP’s statement announcing the suo motu notice notes that the issues raised in the case “require immediate consideration and resolution” by the apex court. “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,” it said, stressing that it was necessary for 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,” it added, while emphasizing that “Under Article 224(2), polls should be held within 90 days of the assembly dissolution.”
The statement has also noted the cases already pending in various judicial forums seeking a date for elections. It highlights that the Punjab governor has maintained that as he did not dissolve the assembly, he does not have the authority to issue a date for elections, as well as noting that the ECP has taken the position that it does not have the constitutional mandate to pick a date for general elections. The CJP also noted statements from the ECP over it not being provided the required assistance and support for its functions, including necessary funds, personnel and security.
While the development has been welcomed by the PTI, it has not been free of controversy, with legal experts questioning the inclusion of Justices Ahsan and Naqvi—who had both urged the CJP to take suo motu suggesting preconceived judgment—and the exclusion of Justices Qazi Faez Isa and Sardar Tariq Masood, the two senior-most judges after the CJP. Naqvi is also facing backlash from the legal fraternity following the release of an alleged conversation between him and former Punjab chief minister Parvez Elahi, raising questions over his impartiality. On Wednesday, the Pakistan Muslim League (Nawaz) announced that it considered both Ahsan and Naqvi ‘biased’ and would seek their recusal from all cases involving it and its leadership in future.