SC resumes suo motu hearing on delay in KP, Punjab polls

The Supreme Court of Pakistan resumed on Friday a suo motu hearing on the delay in the Punjab and Khyber Pakhtunkhwa assembly polls.

The case is being heard by a nine-member larger bench led by Chief Justice of Pakistan Justice Umar Ata Bandial. Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Mazhar Ali Naqvi, Justice Muhammad Ali Mazhar, Justice Yahya Khan Afridi, Justice Mansoor Ali Shah, Justice Athar Minallah, and Justice Jamal Khan Mandokhel are also on the bench.

At the last hearing on Thursday, the apex court had issued notices to the federal government, attorney-general, election commission, advocate-generals of the four provinces, and advocate-general of the Islamabad Capital Territory.

On February 22, the CJP had taken notice of an apparent delay in the elections in the two provinces where the Pakistan Tehreek-e-Insaf (PTI) dissolved the legislative assemblies at the behest of party chief Imran Khan in mid-January.

The CJ took suo motu notice two days after President Dr Arif Alvi fixed April 9 as the date for elections to the provincial assemblies — a move condemned by the government as "unconstitutional and illegal". The CJP also formed a larger bench to hear the case.

Governors in the two provinces declined to give a date for elections.

Justice Jamal Khan Mandokhel had expressed reservations about invoking suo motu jurisdiction over the delay in announcing the election dates, saying that it was not “justified.”

While the other two judges on the bench, Justices Syed Mansoor Ali Shah and Athar Minallah, raised questions about the dissolution of the assemblies. According to Justice Athar Minallah, the people of this country elect their representatives to parliament for a five-year term.

“It remains to be seen whether the provincial assemblies of Punjab and KP were dissolved as per the Constitution. As a result, if they violate the Constitution, it becomes a constitutional issue.”

Similarly, about the dissolution of provincial assemblies, Justice Syed Mansoor Ali Shah stated that the court should investigate whether the chief minister of a province can act on the direction of a political party leader.

The judge questioned how assemblies could be dissolved on an individual’s directives, adding that the court should also investigate whether assemblies were dissolved in violation of the Constitution and why they couldn’t be restored to resolve the issue.

“The reservations expressed by Justice Jamal Khan Mandokhel and the questions raised by Justices Syed Mansoor Ali Shah and Athar Minallah will be accommodated in the court’s order,” Chief Justice Umer Ata Bandial said while dictating the order.

The court also issued notices for today's hearing to members of the Pakistan Democratic Movement (PDM), the governments of Punjab, and Khyber Pakhtunkhwa through their respective chief secretaries, the Pakistan Bar Council, and the Supreme Court Bar Association.

The court did not issue a notice to the president or the governors of Punjab and Khyber Pakhtunkhwa because they are protected by Article 248 of the Constitution.

The court stated in its order that if the president and governors so desired, they could also file their case with the court.

In the order, the chief justice also stated that two petitions were filed before the court: one by the Islamabad High Court Bar Association and the other by the speakers of the provincial assemblies of Punjab and Khyber Pakhtunkhwa, requesting that this court direct the constitutional authorities concerned to hold elections in the two provinces, arguing that elections are required under Article 224 of the Constitution within 90 days after the dissolution of the assemblies.

The court noted that, under Section 57(1) of the Election Act 2017, the president had recently announced the date of April 9 for holding elections to both provincial assemblies.

The court stated in its order that proceedings in the matter are still pending with the Lahore and Peshawar high courts and that the learned Lahore High Court has directed the Election Commission of Pakistan (ECP) to announce the date for the Punjab election after consulting the governor.

The court noted that both the election commission and the Punjab governor had challenged the order through an intra-court appeal, and that the matter was scheduled before the LHC for February 21, 2023, and that notices were issued for February 27 after the matter was heard.

Similarly, the court noted in its order that the Peshawar High Court proceedings were scheduled for February 28, 2023, when the ECP filed its report.

“Despite the lapse of six weeks following the dissolution of assemblies, the matter of fixing dates for elections to both provincial assemblies remains subordinate,” the court stated in its order, adding that Article 224 of the Constitution requires elections to provincial assemblies to be held within 90 days of the dissolution.

In the circumstances, a bench of the Supreme Court referred the case to the office for a suo motu notice, which was issued on February 22.

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