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Petitioner: Islamabad High Court Bar Association Islamabad through its President Muhammad Shoaib Shaheen, ASC Islamabad VS Respondent: Election Commission of Pakistan through the Chief Election Commissioner, Islamabad and others
Court Name: Supreme Court of Pakistan Judge(s):Syed Mansoor Ali Shah, Muhammad Ali Mazhar, Munib Akhtar, Jamal Khan
Mandokhail, Umar Ata Bandial (C.J) Title:Islamabad High Court Bar Association Islamabad through its President Muhammad Shoaib Shaheen, ASC Islamabad vs Election Commission of Pakistan through the Chief Election Commissioner, Islamabad and others Case No.:Suo Motu Case No. 1 of 2023, Const. Petition No.1 of 2023, Const. Petition No.2 of 2023 Date of Judgment:2023-02-28 Reported As: 2023 SCP 169 Result: Order Accordingly Judgment ORDER Munib Akhtar, J.: On 01.03.2023 these matters were disposed of majority, by means of a short order that was in the following terms: "By a majority of 3:2 (Mr. Justice Syed Mansoor Ali Shah and Mr. Justice Jamal Khan Mandokhail dissenting) and for detailed reasons to be recorded later and subject to what is set out therein by way of amplification or otherwise, these matters are disposed of in the following terms: 1. Parliamentary democracy is one of the salient features of the Constitution. There can be no parliamentary democracy without Parliament or the Provincial Assemblies. And there can be neither Parliament nor Provincial Assemblies without the holding of general elections as envisaged, required and mandated by and under the Constitution and in accordance therewith. Elections, and the periodic holding of elections, therefore underpin the very fabric of the Constitution. They are a sine qua non for parliamentary democracy, and ensure that the sacred trust of sovereignty entrusted to the people of Pakistan is always in the hands of their chosen representatives. 2. While the holding of general elections has different aspects and requirements, one that is absolutely crucial is the timeframe or period in which such elections are to be held. The Constitution envisages two such periods, being of sixty and ninety days respectively. In relation to a Provincial Assembly, the first period applies when the Assembly dissolves on the expiration of its term under Article 107 and the second period is prescribed when it is sooner dissolved under Article
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112. The time periods so set down in Article 224(1) and (2) respectively are constitutional imperatives that command complete fidelity. We are here concerned with the dissolution of two Provincial Assemblies before the expiry of their terms and therefore to the holding of general elections in relation to each within 90 days. 3. It is in the foregoing context that three questions have to be considered by the Court. The Assemblies in question are those of the Punjab and Khyber Pakhtunkhwa Provinces, which dissolved on 14.01.2023 and 18.01.2023 respectively. In both cases, the then Chief Ministers tendered advice to their respective Governors under Article 112(1) of the Constitution to dissolve the Assembly. In the case of the Punjab Province the Governor chose not to act on the said advice so that the Assembly stood dissolved on the expiry of 48 hours, on the date just mentioned. In the case of the KPK Province, the Governor did act on the advice and made an order dissolving the Assembly, on 18.01.2023. The questions which have been considered with the assistance of learned counsel for the various parties and the Law Officers are as follows: 1. Who has the constitutional responsibility and authority for appointing the date for the holding of a general election to a Provincial Assembly, upon its dissolution in the various situations envisaged by and under the Constitution? 2. How and when is this constitutional responsibility to be discharged? 3. What are the constitutional responsibilities and duties of the Federation and the Province with regard to the holding of the general election? 4. The Constitution envisages three situations for the dissolution of a Provincial Assembly. These, in the context of the role of the Governor, are as follows. 5. The first situation is set out in clause (2) of Article 112. This envisages the dissolution of the Assembly by an order made by the Governor at his discretion, subject to the previous approval of the President and fulfillment of the conditions set out therein. In this situation, the Assembly cannot, and does not, dissolve without an order being made by the Governor, and dissolves immediately on the making of the order. 6. The second situation is set out in clause (1) of Article 112, when the Chief Minister advises dissolution. This situation can be divided into two sub-categories, which are as follows: a. The first is where the Governor acts on the advice tendered and makes an order dissolving the Assembly. Here, the Assembly dissolves immediately on the making of the order. b. The second sub-category is where the Governor does not make an order of dissolution on the advice tendered. Here, the Assembly stands dissolved on the expiry of forty-eight hours from the tendering of the advice by the Chief Minister (i.e., by the efflux of time), and that does not require an order of the Governor. 7. The third situation is set out in Article 107. This provides that unless an Assembly is sooner dissolved (i.e., in terms of either of the two preceding situations), it stands dissolved after a term of five years. Here, the Governor has no role at all; the Assembly dissolves by the efflux of time. 8. Article 105(3)(a) provides that where the Governor dissolves the Assembly he shall appoint a date for the holding of a general election thereto, being a date not later than 90 days from the date of the dissolution. 9. The Elections Act, 2017 ("2017 Act") has been enacted by Parliament in exercise of its legislative competence under the Constitution. That includes, in addition to Entry 41 of the Fourth Schedule, a specific provision in the body of the Constitution, being Article 222, that expressly articulates a list of matters relating to elections which are within the Federal domain. The 2017 Act applies, inter alia, to both the National and the Provincial Assemblies. Section 57(1) thereof provides that the President shall "announce the date or dates of the general elections after consultation with the Commission". 10. On a conjoint reading of the foregoing provisions we conclude and hold as follows:
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a. In situations where the Assembly is dissolved by an order of the Governor, the constitutional responsibility of appointing a date for the general election that must follow is to be discharged by the Governor as provided in terms of Article 105(3)(a). These are the situations described in paras 5 and 6(a) above. b. In situations where the Assembly is not dissolved by an order of the Governor, the constitutional responsibility of appointing a date for the general election that must follow is to be discharged by the President as provided in terms of s. 57(1) of the 2017 Act. These are the situations described in paras 6(b) and 7 above. 11. Since the general election on a dissolution of a Provincial Assembly has to be held within a time period stipulated by the Constitution itself, which is a constitutional imperative, the President or, as the case may be, the Governor must discharge the constitutional responsibility of appointing a date for the said election swiftly and without any delay and within the shortest time possible. The Election Commission must proactively be available to the President or the Governor, and be prepared for such consultation as required for a date for the holding of general elections. 12. It follows from the foregoing that in relation to the dissolution of the Punjab Assembly, to which the situation described in para 6(b) above applied, the constitutional responsibility for appointing a date for the general election that must follow was to be discharged by the President. However, in relation to the dissolution of the KPK Assembly, to which the situation described in para 6(a) above applied, the constitutional responsibility for appointing a date for the general election that must follow was to be discharged by the Governor. 13. It further follows that the order of the President dated 20.02.2023 is constitutionally competent and subject to what is observed below, it is hereby affirmed insofar as it applies to the Punjab Assembly; but the same is constitutionally invalid insofar as it applies to the KPK Assembly and is therefore hereby set aside. It also follows that the Governor of KPK Province, inasmuch as he has not appointed a date for the holding of the general election to the Assembly of that Province is in breach of his constitutional responsibility. 14. It is further declared and directed as follows in relation to the matters before the Court: a. In ordinary circumstances the general election to the Punjab Assembly ought to be held on 09.04.2023, the date announced by the President in terms of his order of 20.02.2023. However, we are informed that on account of the delay in the emergence of the date for the holding of the general election, it may not be possible to meet the 90 day deadline stipulated by the Constitution. It is also the case that (possibly on account of a misunderstanding of the law) the Election Commission did not make itself available for consultation as required under s. 57(1) of the 2017 Act. The Election Commission is therefore directed to use its utmost efforts to immediately propose, keeping in mind ss. 57 and 58 of the 2017 Act, a date to the President that is compliant with the aforesaid deadline. If such a course is not available, then the Election Commission shall in like manner propose a date for the holding of the poll that deviates to the barest minimum from the aforesaid deadline. After consultation with the Election Commission the President shall announce a date for the holding of the general election to the Punjab Assembly. b. The Governor of the KPK Province must after consultation with the Election Commission forthwith appoint a date for the holding of the general election to the KPK Assembly and the preceding clause (a) shall, mutatis mutandis, apply in relation thereto. 15. It is the constitutional duty of the Federation, in terms of clause (3) of Article 148, "to ensure that the Government of every Province is carried on in accordance with the provisions of the Constitution". There can be no doubt that this duty includes ensuring that a general election to the Assembly of every Province is held, and enabled to be held, in a timely manner within the period set out in the Constitution. This duty is in addition to, and applies independently of, the duty cast under Article 220 on "all executive authorities in the Federation and in the Provinces to assist the
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Commissioner and the Election Commission in the discharge of his or their functions". It follows that the Federation, and in particular the Federal Government, is, inter alia, obligated, on an immediate and urgent basis, to forthwith provide the Election Commission with all such facilities, personnel and security as it may require for the holding of the general elections. In like manner, it is the duty of the Provincial Governments, acting under the Caretaker Cabinets, to proactively provide all aid and assistance as may be required by the Election Commission. The duty cast upon the authorities as set out in s. 50 of the 2017 Act must also be discharged forthwith and proactively. 16. The three matters before the Court are found maintainable and stand disposed of as above." We may note that all five members of the Bench signed the above order. The two learned members in dissent respectively wrote in manuscript above their signatures as follows: "I have appended my separate order" (Syed Mansoor Ali Shah, J); and "I have appended my note along with the main order" (Jamal Khan Mandokhail, J). The learned Judges in minority released a joint short order, which was signed by (and only by) the two of them. 2. The following are the reasons for the short order of the majority. We may note that our two learned colleagues in dissent released their (joint) detailed reasons on 27.03.2023. 3. We begin, for reasons that will later become apparent, by briefly setting out the chronology of the proceedings of these matters. Initially, the Hon'ble Chief Justice, as master of the roster, constituted a nine-member Bench, before which these matters were placed on 23.02.2023. That Bench comprised of the following Judges: the Hon'ble Chief Justice, Mr. Justice Ijaz ul Ahsan, Mr. Justice Syed Mansoor Ali Shah, Mr. Justice Munib Akhtar, Mr. Justice Yahya Afridi, Mr. Justice Sayyed Mazahar Ali Naqvi, Mr. Justice Jamal Khan Mandokhail, Mr. Justice Muhammad Ali Mazhar and Mr. Justice Athar Minallah. On 23.02.2023 no substantive hearing took place and the matters were not taken up on the merits. The order of the Court for that day was made by majority, with four of the learned Judges (Syed Mansoor Ali Shah, Yahya Afridi, Jamal Khan Mandokhail and Athar Minallah, JJ) making their own orders. These orders are, for purposes of the record, appended to this judgment as Annex A. It is pertinent to note that through his order Yahya Afridi, J, for "detailed reasons to be recorded later", dismissed all three matters. It was also observed as follows (emphasis supplied): "... I find that my continuing to hear the said petitions is of no avail. However, I leave it to the Worthy Chief Justice to decide my retention in the present bench hearing the said petitions". Athar Minallah, J in his order expressed his concurrence "with the articulate opinion recorded by my learned brother Justice Yahya Afridi". In the event, Yahya Afridi, J released his detailed reasons on 31.03.2023. Athar Minallah, J also released reasons on 07.04.2023. 4. The matters were, as ordered on 23.02.2023, listed before the nine-member Bench on the following day and thereafter adjourned to 27.02.2023. In between, the members of the Bench had an internal meeting in the ante-room of the Court and subsequent thereto a unanimous order signed by all nine members was made, and released on 27.02.2023. That order is annexed to this judgment as Annex B. For convenience, the order is reproduced below: "Keeping in view the order dated 23.02.2023 and the additional notes attached thereto by four of us (Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Jamal Khan Mandokhail and Justice Athar Minallah) as well as the discussion/deliberations made by us in the ante-Room of this Court the matter is referred to the Hon'ble Chief Justice for reconstitution of the Bench." 5. After the above order the Hon'ble Chief Justice, as the master of the roster, constituted a five- member Bench to hear these matters, i.e., the present Bench. That was the Bench that actually sat and heard the matters on 27.02.2023 and 28.02.2023 and thereafter decided the same in terms as noted above. Thus, (and, again, the relevance of this will emerge later in the judgment) these matters were placed before only two Benches: initially a nine-member Bench and then a five- member Bench. At no time was any other Bench of a different strength/composition ever
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constituted by the Hon'ble Chief Justice, nor did any other Bench ever exist or sit in relation to these matters. 6. We now turn to the submissions made by learned counsel for the parties. Mr. Ali Zafar, learned counsel appearing in CP 2/2023, submitted that on 12.01.2023 the then Chief Minister of Punjab advised the Governor to dissolve the Punjab Assembly in exercise of powers conferred by Article 112(1) of the Constitution. Since the Governor chose not to act on that advice, the Assembly stood dissolved by efflux of time 48 hours later, on 14.01.2023. On 17.01.2023, the then Chief Minister of Khyber Paakhtunkhwa advised the Governor to dissolve the KPK Assembly in exercise of the aforesaid powers. In this case, the Governor chose to act on the advice and dissolved the Assembly on 18.01.2023. Subsequent thereto the Speaker of the Punjab Assembly wrote to the Governor on 20.01.2023 asking him to appoint the date for the general election to that Assembly in exercise of powers conferred on the Governor by Article 105(3). Learned counsel submitted that thereafter, on 24.01.2023, the Election Commission of Pakistan ("Commission") wrote separately to both the Governors of Punjab and KPK Provinces, asking them to appoint dates for the general elections to the Assemblies thereof. The Commission also gave a range of dates for consideration by the Governors. Learned counsel submitted that the Governor Punjab responded to the Commission's letter on 01.02.2023. In that, and subsequent correspondence, the stand of the Governor was that since the Assembly was not dissolved on an order made by him Article 105(3) did not apply and the matter of the appointment of the date would therefore have to be dealt with by other provisions of the Constitution and the law, being the Elections Act, 2017 ("2017 Act"). The Governor KPK also wrote (on 31.01.2023) to the Commission but did not appoint any date. Learned counsel submitted that both Governors inter alia also referred to the law and order and security situation in the Provinces which would have to be taken into account. It was emphasized that reference to such considerations was extraneous; the matter was only in respect of the competent authority for appointing a date for the general elections and nothing more. 7. Learned counsel submitted that on 29.01.2023 a writ petition was filed by the Pakistan Tehreek e Insaf (PTI) in the Lahore High Court. That petition and other matters were placed before a learned Single Judge who decided the same vide judgment dated 10.02.2023 (reported as Pakistan Tehreek e Insaf v Governor Punjab and others PLD 2023 Lahore 179). In that judgment, the learned Judge, by relying on Articles 218 and 219, held that the date for the general election had to be given by the Commission as the Punjab Assembly had not been dissolved by order of the Governor. It was held in the operative part of the judgment as follows (emphasis in original): "...the "ECP" is directed to immediately announce the "date of election" of the Provincial Assembly of Punjab with the Notification specifying reasons, after consultation with the Governor of Punjab, being the constitutional Head of the Province, to ensure that the elections are held not later than ninety days as per the mandate of the "Constitution"." It appears that the relevant provisions of the 2017 Act, and in particular s. 57(1), were not noticed in the judgment. 8. Continuing with his submissions, learned counsel submitted that thereafter there was correspondence, and also meetings, between the Governor and the Commission but nothing fruitful emerged, inasmuch as no date was forthcoming for the holding of the general election. It appears that the judgment of the learned Single Judge was then challenged by the Governor by means of an Intra-Court Appeal on or about 16.02.2023. The stance of the Governor was that it was not for him to give the date for the general election. On that ICA notices were issued by the learned Division Bench, and the matter was fixed from time to time but without any substantive hearing. Ultimately, we were informed, the ICA was fixed on 27.02.2023 when it was adjourned sine die by reason of the present matters pending in this Court. In the meanwhile, a contempt petition was also apparently filed in the High Court in relation to the alleged non-performance of the directions given by the learned Single Judge in the aforementioned judgment.
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9. Learned counsel further submitted that in the meantime the President of Pakistan had also stepped in. In a letter written to the Commission on 08.02.2023 the President referred to the dissolution of the two Assemblies and after referring to various provisions of the Constitution and the 2017 Act expressed his disquiet at the delay in the announcing of the date for the general elections. Thereafter, the President again wrote to the Commission on 17.02.2023 and referred to the apathy of the latter and the inaction on its part. The President invited the Commission to meet with him on 20.02.2023 "for consultation in terms of Section 57(1) of the Elections Act, 2017". The Commission wrote to the President on 18.02.2023 in reply to his letter of 08.02.2023 referring to its position with regard to the elections in both Provinces and setting out its own version of how events had unfolded since the dissolution of the Assemblies. The Commission also wrote to the President on 19.02.2023, this time with reference to his letter of 17.02.2023 and did not commit itself to any meeting with the latter. Indeed, the letter, while referring to an internal meeting of the Commission scheduled for 20.02.2023, stated as follows: "For the subject matter at hand, due to reasons stated above and matter being subjudice at various fora, regrettably the Commission may not be able to enter into a process of consultation with the office of the President". This led to the President making an order on 20.02.2023, in exercise of powers under s. 57(1) of the 2017 Act, whereby 09.04.2023 was appointed as the date for the holding of the general elections to both the Punjab and KPK Assemblies. 10. As regards the KPK Province, learned counsel submitted that even though the Governor had himself dissolved the Assembly while acting on the Chief Minister's advice no date had yet been appointed by him for the general election. It was submitted that this was a clear violation of the Constitution inasmuch as here the position was clear: the Governor had to appoint the date in terms of Article 105(3). Learned counsel referred to correspondence between the Commission and the Governor but despite the same no date had been given. It was also submitted that more than one (and, apparently, three) writ petitions were pending in the Peshawar High Court in this regard, but no substantive hearing had yet taken place in relation thereto. Thus, in respect of both Provinces, learned counsel submitted, even the very first step towards holding the general elections had not been taken. It was submitted that in both cases, the general elections had to be held within 90 days of the date of dissolution, which was a mandatory requirement. The deadline in this regard was fast approaching but nothing had been done so far. It was therefore absolutely essential for this Court to step in and make the appropriate orders by way of declarations and directions so that the rights of the electorates in both Provinces, and their fundamental rights, were protected and enforced. Learned counsel prayed accordingly. 11. Mr. Abid Zuberi, learned counsel in CP 1/2023, endorsed the submissions of Mr. Ali Zafar and submitted that the essential question before the Court was as to when the general election was to be held, and who had to appoint the date for the same. As to the first, learned counsel submitted that there could be no doubt that the elections had to be held within the stipulated period of 90 days. That period began as soon as the Assembly stood dissolved, whether by efflux of time (48 hours) or the Governor having made an order on the advice of the Chief Minister. As to the second, learned counsel submitted that if the latter situation applied, as it did in the case of the KPK Assembly, then the Governor was bound to give the date for the general election under Article 105(3). If the former situation applied, as it did in the case of the Punjab Assembly, then the power lay with the President in terms of s. 57(1) of the 2017 Act. That was also the position where the Assembly stood dissolved on the expiry of its five year term. It was further submitted that when acting in terms of s. 57(1) the President was not bound to act on the advice of the Prime Minister. Certain case law was also referred to in this regard. 12. The learned Attorney General submitted that the questions before the Court required consideration of the following points. Firstly, the power conferred on the Governor in terms of Article
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105(3), which corresponded to the power of the President under Article 48(5), did not apply to the situation at hand. That power, it was submitted related only to a dissolution under Article 112(2), which corresponded to Article 58(2) in relation to the National Assembly. Secondly, the learned Attorney General submitted that the power to appoint the date for a general election was a power coupled with a duty. The appointing of the date was only directory though the learned Attorney General accepted that Article 224 was applicable to all situations of dissolution, the relevant period for the holding of general election (i.e., sixty or ninety days) applying as appropriate. Thirdly, it was submitted that constitutional provisions and their requirements could not be interpreted on the basis of statutes and therefore, s. 57(1) did not control the appointment of a date of the general…
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