Once again, the Supreme Court Bar Association (SCBA) is pressing the Chief Justice of Pakistan (CJP), Umar Ata Bandial, to instruct the Election Commission of Pakistan (ECP) for the organization of general elections within 90 days after the dissolution of the National Assembly on August 9.
The petition was filed by SCBA President Abid Zuberi, Secretary Muqtedir Akhtar Shabbir, and two other members, Shakeelur Rehman and Bushra Qamar, belonging to the Professional Lawyers Group—a faction in the legal community often associated with supporting the PTI (Pakistan Tehreek-e-Insaf).
Interestingly, this same lawyers' group is also aligned with CJP Bandial's call for elections in Punjab and Khyber-Pakhtunkhwa.
This marks Zuberi's first constitutional petition submitted to the top court. Previously, he had challenged the establishment of an audio leaks commission and the trial of civilians in military courts under the Army Act. He is also currently opposing the Supreme Court Practice and Procedure Act 2023, which governs the chief justice's authority to constitute benches and manage cases.
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Zuberi's latest legal move challenges the Council of Common Interests (CCI)'s decision on August 5 to approve the notification of the digital census.
A senior lawyer believes that this petition is premature as the Election Commission of Pakistan (ECP) did not decide against the holding of general elections within 90 days, adding that the commission still has around 30 days more to announce the date for holding the general elections.
It is learnt that the election supervisor’s meeting about the possible deliberations to carry out delimitation in view of digital census has remained inconclusive.
The ECP may seek opinion from senior lawyers on the repercussions of the CCI’s notification on the new census.
There appears to be a certain hesitancy among state institutions, including the ECP, in approaching the Supreme Court for guidance during Chief Justice of Pakistan (CJP) Umar Ata Bandial's tenure. Now, with Chief Justice-designate Qazi Faez Isa on the horizon, many are looking to him as the potential determinant of the fate of the upcoming general elections.
A well-placed senior lawyer, known to have connections within influential circles, suggests that it's plausible that the current petition might be brought before CJP Bandial as a means to secure broader societal recognition prior to his retirement. This is in line with the tradition of each Chief Justice seeking to leave a legacy of having contributed to the cause of democracy – a fundamental pillar of the Constitution.
There has been a history that every chief justice gave some landmark judgement in the twilight of his tenure. However, the lawyer maintains that in pursuit of a judicial “legacy” a significant amount of damage has already been wrought.
It will be a blunder if this petition is taken up without consulting with all judges, he added.
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The previous Pakistan Democratic Movement (PDM) government enjoyed the support of Independent Lawyers Group – another group of the legal fraternity – during its tenure.
It will be interesting to see whether the caretaker government and security establishment can garner the backing of the Independent Lawyers Group. This group, having previously supported the government on multiple matters, suffered defeat in the last SCBA president election.
Legal opinion
Hafiz Ahsaan Ahmad Khokhar Advocate states that the ECP now has the authority and prerogative to announce the general election's schedule after the Election Act 2017 was recently amended following the decision of the CCI.
Section 57(1) of the Elections Act, as amended, according to him states that the election commission would announce the date or dates for the general polls and that the process of consultation between the ECP and the president for the announcement of polls schedule has been waived off.
He further clarified that Article 224 of the Constitution, which specifies whether elections must be held within 60 or 90 days, is not independent and is dependent on Article 51(5) of the Constitution, which states that seats in the National Assembly must be distributed to each province and the federal capital based on the population in accordance with the most recent officially published census.
The outgoing government made the decision through the CCI, which comprises all chief ministers and is headed by the prime minister.
As a result of the passage of the Eighteenth Constitutional Amendment in April 2010, significant issues pertaining to the federation were listed in the Federal Legislative List (Part-II) for the CCI to consider and make decisions on, and the census subject was one of those matters.
The constitutional expert added that the provision for starting the election schedule under Article 224 of the Constitution would not go into effect until the process started by Article 51(5) of the Constitution, which should be finished in 120 days, is completed.
This is because the provision of Article 224 of the Constitution is dependent upon the completion of the limitation process for constituencies under Article 51(5) of the Constitution.
The CCI comprises the premier, who will serve as its chairman, the chief ministers of the provinces, and three members of the cabinet.
According to Khokhar’s legal explanation, the president appoints the CCI members.
Every decision made by the members of the council cannot be challenged on the grounds that it should have been made by the elected chief ministers or prime minister, according to the constitutional expert, who claims that neither a distinction has been prescribed nor there is any prohibition in Article 153 of the Constitution that caretaker chief ministers cannot participate in the proceedings of the CCI.
Considering the clear provisions of Articles 51(5), 153 read with Article 224 of constitution, he further maintained that it would be extremely difficult for the petitioners to cross the bridge of maintainability of public interest litigation under Article 184 of the Constitution before the Supreme Court.
He also stated that the superior courts would generally not look into the area where there is a mention of some provision of the mandatory requirement of the Constitution before a process take place.
He referred to another article in the Constitution, which in the present case states that seats in the National Assembly shall be allocated to each province and the federal capital on the basis of population in accordance with the last preceding census officially published as per Article 51(50 of the Constitution, which has been done recently when the federal government was in power).
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The lawyer added that Article 51 (50 of the Constitution) has over ridding effect over Article 224 of the Constitution because the previous federal government announced the new census following the unanimous decision of the CCI prior to the dissolution of the National Assembly, thus the ECP could not be legally required to announce the date for holding the general election within 90 days until the required process under Article 51(5) is completed.
He claims that currently, the election supervisor could only be advised to complete the process of constituency limitation at the earliest in accordance with Article 51(5) of the Constitution and then to announce the election schedule in accordance with Article 224 of the Constitution read in conjunction with the provisions section 56 and 57 of the Election Act 2017"
One section of lawyers, including the petitioners, believe that the CCI decision is based on mala fide to delay the elections.
Likewise, holding polls within 90 days is a constitutional requirement, so, the top court should intervene into the matter, they added.
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