A division bench of the Supreme Court on Thursday referred the matter of the Punjab Assembly elections to Chief Justice of Pakistan Umar Ata Bandial for invoking suo motu jurisdiction, warning that there was an eminent danger of violation of the Constitution.
Hearing a petition filed by Ghulam Mehmood Dogar, who had been repatriated to the federal government, the court stressed that it was refraining from passing on order on the election matter, because it was not before the bench.
“We, therefore, consider it a fit case to refer to the Hon’ble CJP to invoke the suo motu jurisdiction … under Article 184(3) of the Constitution, said the order issued by a two-member bench, comprising Justice Ijazul Ahsan and Justice Mazahar Ali Akbar Naqvi.
“… there is an eminent danger of violation of the Constitution which we are under a constitutional, legal and moral duty to defend,” the order said, adding: “Let the office place this file before the Hon’ble CJP for appropriate orders.”
The election issue came up during hearing of the petition against the transfer of Dogar from the post of the Lahore capital city police officer. The court was informed that the federal government had nothing to do with the transfer of the petitioner.
The attorney general for Pakistan (AGP) said that the order was issued by the Punjab governor, while, the Punjab additional advocate general submitted that the transfer had been undertaken after approval from the Election Commission of Pakistan (ECP).
In order to clarify the position of the ECP, the court called the chief election commissioner (CEC), who informed the court that a request was received from the Punjab government for the transfer and the ECP granted the permission.
During the course of arguments, it was submitted that transfers and postings have a direct reference to the elections, which are required to be held within 90 days of the dissolution of the Punjab assembly.
The CEC told the court that the ECP was committed to fulfil its constitutional obligations however, it lacked jurisdiction to announce a date for the elections which, according to him, fell within the domain of the provincial governors.
He further informed the bench, that the Punjab governor had not announced the date on the ground that since the assembly had not been dissolved on his order, he had no jurisdiction to give the election date.
The CEC took the plea the ECP was not empowered under the Constitution to announce a date. Referring to the Lahore High Court (LHC) order for holding the poll, he said that an application had been moved in the court for clarification of the order of February 10.
The Punjab assembly was dissolved on January 14 on the advice of the chief minister, sent to the governor. As such, elections to the Punjab Provincial Assembly are required to be held within 90 days of that date under Article 224(2) of the Constitution.
“However, no progress appears to have taken place in this regard and there is a real and eminent danger of violation of a clear and unambiguous constitutional command,” the bench said in its order.
“In view of the fact that this matter is not before us in the present list, we are not inclined to pass any order in this regard in view of the principle of law laid down by this Court in its judgment reported as Suo Motu Case No.4 of 2021…” it added.
“We are, however, 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 Fundamental Rights conferred by Chapter-1 of Part-II of the Constitution.”
Considering the fact that unless timely steps were taken to remedy the situation, the order continued, there was an eminent danger of violation of the Constitution. “We therefore consider it a fit case to refer to the Hon’ble CJP to invoke the suo motu jurisdiction.”
“Let the office place this file before the Hon’ble CJP for appropriate orders … who may if he considers appropriate after invoking jurisdiction under the said Article [184(3)] constitute a Bench to take up the matter.”
Earlier, during the hearing, Justice Ahsan told the CEC that that there was no ambiguity in the Constitution regarding elections in 90 days. “The intent of the Constitution is to hold elections in 90 days,” the judge said.
Emphasising that transparent elections in the country were the sole responsibility of the ECP,” the bench warned that if the elections were not held within 90 days, it would be a violation of the Constitution.
“It is true that it has been written in the Constitution to hold elections in 90 days,” the CEC replied, “but it is not written in the Constitution that the Election Commission will give the date, [so] if we give the date, it will be a violation of the Constitution.”
The CEC said that the president and the governor had the authority to give the date of the elections. Justice Ahsan said that if the governor was refusing to give the date, then the matter was in ECP’s court.
The CEC told the court said that if the ECP fixed the date, it would be a violation of the Constitution. Justice Ahsan said that holding elections within the stipulated period would not be a violation of the Constitution.
The CEC said that he also faced other problems. He pointed out that the army was sought for security for the elections, but it declined; so as the judiciary refused to provide staff for appointment as the returning officers, while request for funds had also been declined.
On the matter of transfer, Justice Ahsan remarked that the caretaker government could not make transfers and appointments. “If the caretaker government intended to transfer, it must have solid reasons, and the ECP will review those reasons and issue an appropriate order.”
Later, the bench asked the CEC for submit details of its correspondence with all the institutions and adjourn further hearing of the case till Friday (today).
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