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Petitioner: Mohammad Sibtain Khan and others VS Respondent: Election Commission of Pakistan JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Ijaz-ul-Ahsan, Munib Akhtar, Umar Ata Bandial (C.J) Title:Mohammad Sibtain Khan and others vs Election Commission of Pakistan
JUDGMENT
Reported As: 2023 SCP 211, 2023 SCMR 2165 Result: Petition Disposed of Judgment JUDGMENT Munib Akhtar, J.: This petition was disposed of by means of the following short order dated 04.04.2023: "For detailed reasons to be recorded later and subject to what is set out therein by way of amplification or otherwise: 1. The impugned order dated 22.03.2023 ("EC Order") made by the Election Commission of Pakistan ("Commission") is declared to be unconstitutional, without lawful authority or jurisdiction, void ab- initio, of no legal effect and is hereby quashed. Neither the Constitution nor the law empowers the Commission to extend the date of elections beyond the 90 days period as provided in Article 224(2) of the Constitution. 2. The Election Programme notified by the Commission under s. 57(2) of the Elections Act, 2017 on 08.03.2023 (vide notification No. F.2(3)/2023-Cord.) for the general election to the Punjab Assembly stands revived and restored immediately with, however, certain modifications. The need for the modifications arises for the following reason. On 22.03.2023, when the EC Order was made matters had reached up to stage 5 of the notified Election Programme. The EC Order unlawfully purported to withdraw the Election Programme. Thus, the remaining stages (Nos. 6 to 11) could not be given effect to. In the meanwhile 13 days have been lost on account of the unlawful order made by the Commission. In consequence thereof, the remaining stages have to be moved forward to take account of the lost period, and the Election Programme must be modified accordingly. We come to this conclusion with reluctance but consider it inevitable on account of the situation brought about
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by the EC Order. Therefore, the Election Programme will, in relation to stages No. 6 to 11, stand modified, and apply in the following manner: 6.Last date for filing of appeals against decision of the10.04.2023 Returning Officer rejecting/accepting the nomination papers 7.Last date for deciding of appeals by the Appellate 17.04.2023 Tribunal 8.Publication of revised list of candidates 18.04.2023 9.Last date for 19.04.2023 10.withdrawal of candidature and Publication of revised list of candidates 11.Allotment of Election Symbol to contesting candidates 20.04.2023 12Polling day 14.05.2023.
3. In consequence thereof, the polling day perforce must be shifted, and moved forward from 30.04.2023 to 14.05.2023. 4. It is to be noted that on specific queries from the Court, the Commission categorically stated that if it was provided with necessary aid and assistance by the executive authorities in the Federation and the Provinces in discharge of their constitutional obligations under Article 220, then the Commission, notwithstanding everything set out in the recitals of the EC Order, would be able to organize and conduct the general elections to the Punjab and KPK Assemblies honestly, justly, fairly and in accordance with law, as required in terms of Article 218(3) of the Constitution. Therefore, the following further orders are made and directions given: 5. The Federal Government shall forthwith and in any case by 10.04.2023 release and provide to the Commission funds in the sum of Rs. 21 Billion for purposes of the general elections to the Punjab and Khyber Pakhtunkhwa Assemblies. The Commission shall, by 11.04.2023, file a report in the Court stating whether the said funds have been provided and received and if so, whether in full or in part. The report shall be placed before the members of the Bench for consideration in Chambers. If the funds have not been provided or there is a shortfall, as the case may be, the Court may make such orders and give such directions as are deemed appropriate to such person or authority as necessary in this regard. The Commission shall be entitled to utilize the funds in the first instance for the purposes of the general election to the Punjab Assembly. If there is thereafter a shortfall for purposes of the general election to the KPK Assembly, the Commission may make an appropriate representation to this Court for such consideration and orders as deemed appropriate. 6. The caretaker Cabinet that constitutes the Government of Punjab and, in particular, the Chief Secretary and the Inspector General Police of that Province must forthwith, and not later than 10.04.2023, provide a plan acceptable to the Commission for, inter alia, providing sufficient personnel for election-duty and security purposes for the holding of the general election. Furthermore, and in any case, the Government of Punjab and all officials thereof must, in discharge of constitutional and legal duties and responsibilities, proactively provide all aid and assistance to the Commission for the holding and conduct of the general election. 7. The Federal Government must, in exercise of its powers and position in terms of Article 243(1) of the Constitution, and all other constitutional and legal powers enabling it in that behalf, and in discharge of its constitutional duties under Articles 148(3) and 220, provide all such aid and assistance to the Commission as required by it for the holding and conduct of the general elections to the Punjab and KPK Assemblies. Without prejudice to the generality of the foregoing, the Federal Government must make available all necessary personnel, whether from the Armed
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Forces, Rangers, Frontier Constabulary and all other forces under the direct, indirect or ultimate command and control of the said Government, as are required by the Commission for security and other purposes related to the general elections. In this regard, the Federal Government must forthwith, and not later than 17.04.2023, provide a plan acceptable to the Commission. 8. If there is a failure by the Federal Government or the Caretaker Government in the Punjab to provide aid and assistance to the Commission and, without prejudice to the generality of the foregoing, in particular to comply with what has been set out hereinabove, the Commission may make an appropriate representation to this Court for such consideration and orders as deemed appropriate. 9. Our attention has been drawn to certain matters that were pending in this Court (being SMC 1/2023 and CP Nos. 1 and 2/2023) and which were heard and decided on 01.03.2023 by a five member Bench of the Court by a majority of 3:2 (Umar Ata Bandial, CJ and Munib Akhtar and Muhammad Ali Mazhar, JJ; Syed Mansoor Ali Shah and Jamal Khan Mandokhail, JJ dissenting). In particular, our attention has been drawn to the detailed reasons of the two learned Judges in minority (released on 27.03.2023), wherein it is, inter alia, stated that the said matters were decided (and dismissed) by a majority of 4:3. Respectfully, the position as claimed by the learned Judges in minority is erroneous and not sustainable in law. 10. Our attention has also been drawn to an order dated 29.03.2023 made in SMC 4/2022 by a majority of 2:1 by a learned three member Bench (Qazi Faez Isa and Aminuddin Khan, JJ; Shahid Waheed, J dissenting). The hearing of the present matter remained, and its decision by this Bench is, wholly unaffected by any observations made in the aforesaid majority order. 11. Insofar as the general election to the KPK Assembly is concerned, in relation to which the present petitioners have also sought relief, learned counsel who entered appearance on behalf of the Governor of KPK Province withdrew from such appearance on account of a certain stand taken by a political party which learned counsel was also representing. The Governor, KPK Province therefore ceased to have representation before the Court. In such circumstances, the matter relating to the KPK Province is not adjudicated upon, with permission granted to the petitioners to file such petition and/or seek such relief before such forum as is deemed appropriate." The following are the reasons for the short order. 2. We may note at the outset that in an important sense this petition can be regarded as a follow up of the decision in a bunch of matters that had been taken up earlier, being SMC 1/2023 and two constitutional petitions filed under Article 184(3) of the Constitution. Those matters were ultimately heard by a five member Bench and decided by a majority of 3:2. The short order in those matters (herein after referred to as the "Earlier Short Order") was made on 01.03.2023 and the detailed reasons of the majority were released on 27.06.2023. Since the said matters are a prelude to the instant petition, in setting out our detailed reasons we assume that the reader is, at the very least, familiar with the terms of the Earlier Short Order. (That short order and the detailed reasons for the same are available on the website of the Court.) 3. After the Earlier Short Order, and in compliance thereof, the Election Commission of Pakistan ("Commission") wrote to the President of Pakistan on 03.03.2023. The President was requested, in terms of para 14(a) of the Earlier Short Order, to announce the date for the holding of the general election to the Punjab Assembly. The Commission proposed a poll date between 30.04.2023 and 07.05.2023. The President, by order of the same date, announced 30.04.2023 as being the date for the general election. The Commission also wrote, at the same time and in similar terms, to the Governor of Khyber Pakhtunkhwa Province, requesting him to announce the date for the holding of the general election to the KPK Assembly, and proposing certain dates in this regard. However, the Governor vacillated and, as of the date of the filing of the instant petition, had not given the date as required of him in terms of para 14(b) of the Earlier Short Order.
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4. After the President announced the date of the general election to the Punjab Assembly the Commission, in compliance of its constitutional and statutory obligations and powers (the latter being under the Elections Act, 2017 ("2017 Act")), announced the election program on 08.03.2023 by notification No.F.2(3)/2023-Cord. That program ("Election Schedule") was in a table set out in the notification, which was in the following terms: Sl. No.EVENTS DATE 1.2 3 1.Notification of Election Programme 08.03.2023 2.Public Notice to be issued by the Returning 11.03.2023 Officer on 3.Dates for filing of nomination papers with the Returning Officer by the candidates 12.03.2023 to 14.03.2023 4.Publication of names of the nominated candidates 15.03.2023 5.Last date for Scrutiny of nomination papers by the Returning Officer 22.03.2023 6.Last date for filing of appeals against decision of the Returning Officer rejecting/accepting the nomination papers27.03.2023 7. Last date for deciding of appeals by the Appellate Tribunal03.04.2023
8.Publication of revised list of candidates 04.04.2023 9.Last date for withdrawal of candidature and 05.04.2023 Publication of revised list of candidates 10.Allotment of Election Symbol to contesting candidates 06.04.2023 11.Polling day 30.04.2023.
5. The process for the holding of the general election, as per the Election Schedule, was well underway and the first four events in terms thereof were already complete when the Commission, on the last day of the fifth event, suddenly released an order, said to be in exercise of its powers under Article 218(3) of the Constitution read with ss. 58 and 8(c) of the 2017 Act and "all other" enabling powers, and for which the Commission claimed also to derive wisdom from a judgment of this Court reported as Workers Party and others v Federation of Pakistan and others PLD 2012 SC 681. By the said order, impugned herein, the Commission purported to withdraw the aforementioned notification and the Election Schedule and ordered that "fresh schedule will be issued in due course of time with poll date on 8th October, 2023". (For completeness we may note that the impugned order was "corrected" by means of a corrigendum issued on 25.03.2023, but nothing material turns on that.) 6. Since the general election to the Punjab Assembly was thus suddenly shifted forward by several months, and no date at all had yet been given for the election to the KPK Assembly, the Speakers of both Assemblies and certain other petitioners filed the instant petition under Article 184(3) on or about 25.03.2023. The principal reliefs sought were for the annulment and setting aside of the aforementioned order of 22.03.2023 made by the Commission in relation to the Punjab Assembly (herein after "the impugned order") and a restoration of the Election Schedule and the date that had been announced the President, and a direction to the Governor, KPK to announce the date for
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the general election to the Assembly of that Province. We may note that this petition was initially fixed before a five member Bench, comprising of the Hon'ble Chief Justice and Ijaz Ul Ahsan, Munib Akhtar, Amin-Ud-Din Khan and Jamal Khan Mandokhail, JJ. Two of the learned members of the Bench, Amin-Ud-Din Khan and Jamal Khan Mandokhail, JJ., recused themselves on successive dates, with the result that the petition came to be heard and decided by the Bench as now constituted. 7. Learned counsel for the petitioners submitted that the core issue was whether the Commission could extend the date of a general election beyond the period stipulated in the Constitution. It was submitted that this question had necessarily to be answered in the negative. The Punjab Assembly having dissolved by efflux of time when the Governor did not act on the advice tendered by the then Chief Minister, the general election had to be held within 90 days. This was a mandatory constitutional requirement. The Commission could not go beyond that date. It was submitted that in doing so by means of the impugned order, the Commission had acted in gross breach of the Constitution and, inter alia, violated the fundamental right inhering in terms of Article 17 not just in the petitioners but the entire electorate and citizens of Pakistan living in Punjab. All of them were, for that reason, aggrieved persons. Various cases were cited in support of the submissions made. Learned counsel submitted that the Earlier Short Order had been acted upon by the Commission itself and the President, in compliance thereof, had announced the election date. The Election Schedule had been released and was being acted upon when suddenly and abruptly the impugned order was made. It was completely unlawful. 8. Learned counsel submitted that the reasons given by the Commission for the short order were unsustainable in law and in terms of the Constitution. Those reasons were essentially the lack of financial resources and the inability of the concerned authorities to provide the necessary security. In this regard reliance was placed on Article 220 of the Constitution. It was prayed that the impugned order be set aside and the Election Schedule be restored, and the general election held on the stipulated date. As regards the KPK Assembly, it was prayed that the Governor be directed to give the date for the general election, as per his constitutional obligation and the direction contained in the Earlier Short Order. 9. The learned Attorney General opposed the petition. It was submitted that three points required attention. Firstly, a new date for the election had been given by the Commission in the impugned order. Secondly, the impugned order was made on the basis of information received from the concerned quarters regarding the financial position and the security situation. Thirdly, only one political party (the Pakistan Tehreek-e-Insaf) was before the Court (as one of the petitioners); it would be in the fitness of things if the other political parties were also heard. As regards the financial position, the learned Attorney General submitted that the economic and budgetary position was extremely dire. The Federal Government was in delicate negotiations with the International Monetary Fund, which was seeking to impose extremely tough measures and conditions. That made it very difficult, if not well nigh impossible, for the release of the required funds for the holding of the two general elections. As regards the security situation the learned Attorney General submitted that the Commission had sought the assistance and provision of Armed Forces personnel for election duties. It was submitted that the prevailing security situation at the borders was such that such forces could not be released immediately. It was pointed out that in any case the National Assembly and the other Provincial Assemblies would stand dissolved at the expiry of their terms in around mid-August, when general elections would have to be held for them as well. The security situation was such as precluded the release twice over of personnel for election duties. The same, it was also submitted, could be said of the financial position. It would be much easier for all the general elections to be held on the same date. It was prayed that the petition be dismissed.
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10. Learned counsel for the Commission submitted that there were two facets of the case presented before the Court, legal and factual. It was submitted that the fundamental constitutional point was that the duty of the Commission under Article 218(3) to hold elections honestly, justly and fairly was paramount. In particular, the provisions that stipulated the period within which general elections had to be held (here Article 224(2)) had to give way to the former. Unless and until the Commission was satisfied that it could perform its constitutional duty under Article 218(3) in the manner as required in terms thereof, it had the constitutional power to alter the date for the election and if necessary take it beyond the period set in the Constitution. Other constitutional provisions relating to the holding of elections were essentially subordinate to the fundamental duty cast on the Commission and had to be read holistically along with the same. It was submitted that in terms of ss. 57 and 58 of the 2017 Act the Commission had adequate statutory power and the same had been exercised by the issuance of the impugned order. Strong reliance was placed on Workers Party and others v Federation of Pakistan and others PLD 2012 SC 681 from which various paragraphs were read out. Reference was also made to judgments of the Lahore High Court reported as Government of the Punjab and another v Chief Election Commissioner and others PLD 2010 Lah 1 (single Judge) and (on appeal) Muhammad Azhar Siddique and another v Government of Punjab and others PLD 2010 Lah 138 (DB). 11. On the factual side, learned counsel took us in detail through the correspondence between the Commission and the relevant ministries and departments of the Federal and Provincial Governments. It was submitted that the picture that emerged was that neither the financial resources could be provided or would be forthcoming nor would the security requirements be met. The culmination of this entire exercise which had been going on for months and, in particular, the several weeks immediately preceding the making of the impugned order was the decision of the Federal Cabinet on 22.03.2023, communicated to the Commission, in which the provision of financial and security resources was formally declined. This resulted in the decision taken by the Commission to issue the impugned order of 22.03.2023. It was submitted that the decision to push the general election to 08.10.2023 was not taken lightly. It was the result of the most serious and searching consideration of the constitutional and legal powers of the Commission and the factual situation that was then prevailing. It was prayed that the petition be dismissed. 12. The learned Advocate General Punjab submitted that it would be in the fitness of things if the general elections to all the Assemblies (i.e., National and Provincial) were held together and that in determining whether this ought to be so all the relevant facts had to be taken into consideration. Various cases were cited. The learned Advocate General KPK submitted that insofar as his Province was concerned the matter was at inception inasmuch as the Governor had not yet given the date for the election. Only once the date was given that the electoral process would begin. Insofar as the Governor was concerned learned counsel appearing on his behalf, on instructions from the political party to which the Governor belonged, withdrew from the case, with the result that the Governor was left unrepresented before the Court. 13. We have heard learned counsel as above and considered the relevant constitutional and statutory provisions and the material and case law referred to and relied upon. Article 218(3) provides as follows: "It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against." As noted above, the central theme of the submissions by learned counsel for the Commission was that this clause had a fundamental position in relation to constitutional provisions relating to electoral matters. All the provisions had to be read holistically and when so understood and applied the others had necessarily to yield to Article 218(3) and were subordinated to it. The
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Commission was a constitutional body charged with one of the most important tasks in any democracy, the holding of elections. It was therefore for the Commission itself, and it alone, to determine whether it could discharge its duty to hold elections honestly, justly and fairly. In this regard, great emphasis was placed by learned counsel on the word "conduct" appearing in Article 218(3). If the Commission concluded that it could not discharge this constitutional obligation then it had the constitutional power to take the elections forward, even if that meant that they would be held beyond the period(s) stipulated by clauses (1) or (2) of Article 224, as applicable. That was precisely what had happened in the present case, and hence the impugned order was fully within the remit of the Commission's constitutional duties and powers. We may note clauses (1) and (2) of Article 224: "(1) A general election to the National Assembly or a Provincial Assembly shall be held within a period of sixty days immediately following the day on which the day on which the term of the Assembly is due to expire, unless the Assembly has been sooner dissolved, and the results of the election shall be declared not later than fourteen days before that day." "(2) When the National Assembly or a Provincial Assembly is dissolved, a general election to the Assembly shall be held within a period of ninety days after the dissolution, and the results of the election shall be declared not later than fourteen days after the conclusion of the polls." The present case of course involves clause (2). However, the issues raised and points taken relate equally to clause (1), the only difference being as to the period involved. 14. Before we engage with the substance of what has been contended on behalf of the Commission one preliminary point, of some importance, may be made. Even if for the moment we take the Commission's case on its own terms, which obviously sets it at its highest level, one thing is clear. Anything done, whether an act, decision or omission, by the Commission, and whether it sounds on the constitutional or statutory plane, is not beyond the purview of judicial review. There are two reasons for this. Firstly, to repeat the oft-quoted words of Marshall, CJ in Marbury v Madison 5 US (1 Cranch) 137 (1803)), "[it] is emphatically the province and duty of the Judicial Department to say what the law is". This duty applies in relation to both statutory and (with even greater force) constitutional provisions. Secondly, it is to be noted that the Constitution does not protect any act, omission or decision of the Commission with an ouster clause. The jurisprudence of the Court in relation to such clauses (which are all variants on the "shall not be called in question..." line) where they do exist need not therefore be set out here. The absence of such clauses in relation to the Commission does however indicate that there is no immunity from judicial scrutiny. Of course, the decisions and acts of the Commission are not to be taken lightly and are to be given due respect and consideration. But, in the end, it is for the Court itself to decide on the correctness and legality thereof. 15. We now turn to consider the merits of the Commission's case. With respect, we find it wanting. The…
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