Says if ECP gives election date, it will be going against Constitution and if we act upon one Article of the Constitution, it leads to violation of another Article.

Apex court sends matter to CJP to take suo motu notice.

ISLAMABAD    -   A division bench of the Supreme Court of Paki­stan Thursday referred the matter related to delay in the elections to the Chief Justice of Pa­kistan to take suo moto notice in this regard.

A two-member bench comprising Justice Ija­zul Ahsan and Justice Syed Mazahar Ali Akbar Naqvi, which heard a pe­tition against the trans­fer of Ghulam Mahmood Dogar as the Lahore capital city police offi­cer (CCPO), on short no­tice summoned the CEC to explain reason for not holding elections.

Appearing before the bench, he submitted: “I am being prevented from exercising my pow­ers and constitutional requirements.” “When I asked the army for se­curity [for the elections], I was refused. When I asked the judiciary for permission, for return­ing officers they refused it. I asked for money for the elections, I was re­fused that as well.”

The bench noted in its written order that the Provincial Assembly of Punjab stood dissolved on 14.01.2023 pursuant to the advice of the Chief Minister, Pun­jab dated 12.01.2023. “As such, elections to the Punjab Provincial Assembly are re­quired to be held within 90 days of the said date in terms of 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,” added the bench.

It further said, “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: In the matter of (PLD 2022 SC 306). 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 are taken to remedy the situ­ation, there is an eminent danger of viola­tion of the Constitution which we are un­der a constitutional, legal and moral duty to defend.”

The bench maintained, “We therefore consider it a fit case to refer to the CJP to invoke the suo motu jurisdiction of this Court under Article 184(3) of the Consti­tution, who may if he considers appropri­ate after invoking jurisdiction under the said Article constitute a Bench to take up the matter. Let the office place this file be­fore the CJP for appropriate orders.”

Earlier, during the hearing, Justice Ijaz inquired from the AAG Punjab why de­spite the apex court orders the CCPO was transferred. “What was the rush to trans­fer Ghulam Mahmood Dogar?” he fur­ther asked. The AAG informed Dogar was transferred with the permission of the Election Commission second time. Dogar as the Lahore CCPO was at the centre of a tussle between the federal government and the then Punjab government under Chaudhry Pervaiz Elahi. Dogar booked PML-N leaders in cases and headed the Wazirabad JIT which was probing the at­tempted assassination of Imran Khan. The Centre tried recalling him, which was blocked by the Punjab government. It ul­timately suspended Dogar, but he was re­instated by the top court.

Justice Ijaz then asked: “What is the role of the election commission to transfer of­ficers?” Justice Mazahar remarked that the ECP’s role came after the announce­ment of the elections. The AAG said; “Due to the caretaker setup in Punjab, permis­sion was taken from the election commis­sioner.” “According to the Constitution, elections are to be held within 90 days af­ter the caretaker setup,” he added.

Justice Ijaz asked where the election is? Justice Mazahar remarked that half of the Punjab bureaucracy is transferred, adding is there any district in the Punjab where a transfer has not occurred? Justice Ijaz then asked: “Was the election com­mission not aware of the orders of the Su­preme Court?” “The election commission is doing everything except its own job,” he remarked. The court then summoned CEC Raja “immediately”, pausing the hear­ing for an hour. About an hour later, the CEC appeared in the court and the hear­ing resumed. 

Justice Ijaz observed, “The Constitu­tion obliges to hold elections within 90 days. It is the election commission’s re­sponsibility to hold elections. Not hold­ing the elections within the stipulated time will be going against the Constitu­tion. “There is no ambiguity within the Constitution about holding elections within 90 days. Holding transparent elections is only the election commis­sion’s responsibility,” he added.

The CEC said that according to the Constitution and Election Act, 2017 ei­ther the President or the Governor has to give date for holding elections. Justice Ijaz further said, “caretaker government cannot make appointments and trans­fers”, adding that if it intended to make a transfer, it should “submit a request with concrete reasons”. The ECP was “obliged to issue an appropriate order after reviewing the reasons”.

To this, the CEC responded, “If the court orders, we will stop the transfer (of the CCPO). If we give the election date, it will be going against the Constitution. “If we act upon one Article of the Constitution, it leads to the violation of another Article.” he added. He further said that under

The attorney general cited a verdict be­ing awaited from the Lahore High Court as the reason for the delay. Later, the bench deferred the hearing till today for further proceedings.