10/02/2023
لاہور ہائیکورٹ کا 16 صفحات پر مشتمل فیصلے میں الیکشن کمیشن کو پنجاب میں 90 روز میں انتخابات کروانے کا حکم۔
16 صفحات پر مشتمل تفصیلی فیصلہ جسٹس جواد حسن نے جاری کیا ہے۔
From the prayer made in the “consolidated petitions”, the anchor point is whether writ of mandamus can be issued to either of the Respondents to announce the “date of election” under Article 199 of the “Constitution”. Without any shadow of doubt, 90 days’ time is mandated in the “Constitution” for fixing/announcing the “date of election” of Provincial Assembly after its dissolution in terms of Article 105 and time frame provided under Articles 112 and 224(2) of the “Constitution”. Aptly, the constitutional duties of the Governor of Punjab being the Head of the Province are mentioned under Part-IV, Chapter-1 of the “Constitution” according to which the Governor is appointed by the President on the advise of the Prime Minister and holds the office at the pleasure of the President. Under this Part, the Governor performs his functions on the advice of the Chief Minister or the Cabinet and this Part specifically deals with his role as the Governor for the Province as per Article 101 of the “Constitution” being the head of Province which is equal to the President of the Pakistan under Part-III, Chapter-1, but the President has the term of office under Article 44 for five years. The President also acts on the advice of the Cabinet under Article 41 which is similar to Article 105 of the “Constitution” but the duty/obligation of the Governor are subject to constitution because Article 105 of the “Constitution” starts with subject to constitution, and the provisions invoked by “the Petitioners” under Article of 105(3) where the governor dissolve the Provincial Assembly but he has to first give a date of holding general elections and then to appoint caretaker government. It is evident from the correspondence between the parties and the stance taken by the Governor of Punjab and letter of the President of Pakistan to the Governor clearly manifests that conduct of general election but who has to do it is not answered in Article 224 of the “Constitution” for holding elections within 90 days. It is quite clear that Article 224 of the “Constitution” falls under Part-VIII, Chapter 2 which deals with electoral laws and conduct of elections whereas Part VIII Chapter 1 deals with the Chief Election Commission and Election Commissions with their mandate. Article 224(2) of the “Constitution” deals with the time of election but did not specific which authority as it falls under Chapter 2 of Part VIII which deals with electoral laws and conduct of election. It has been seen that Chapter 2 deals with conduct of election if it is read with Chapter 5 of the “Act”, which deals with the election of the Assemblies read with Chapter 5 of the Elections Rules, 2017.
Perusal of Article 105 of the “Constitution” makes it quite clear that it covers two eventualities; the first eventuality deals with the situation where on the advice of the Chief Minister, the Governor exercises his constitutional power to dissolve the assembly while second eventuality deals with a situation where on such advice by the Chief Minister, he abstains from exercising his constitutional powers and the assembly stands dissolved by operation of law. In the first eventuality, where the Governor uses his constitutional powers to dissolve the assembly, he is clearly bound under Article 105(3)(a) to appoint a date not later than ninety days from the date of dissolution, for the holding of general elections to the Assembly but Article 105 is silent and does not clearly specify as to who is the authority to declare the date of election in the above-mentioned second eventuality.
On the other hand, careful perusal of Article 112 of the “Constitution” also shows that the said two eventualities are duly separated by insertion of semi-colon, separating the eventuality when the Governor so exercises his constitutional powers to dissolve the assembly, from the eventuality when it stands dissolved by the operation of law. Now question arises, at the cost of repetition, that none of the parties have taken the stance against Article 224(2) of the Constitution that general election is required to be held within 90 days therefore, the actual point of dispute is regarding the authority under the given circumstances who is to declare the date of such election.
This is because Article 224(2) also does not specifically mentions the authority who is constitutionally bound to declare the date of election of the Provincial Assembly in such eventuality. To resolve this controversy, while keeping in view the stance of the Governor of Punjab in his correspondence letter dated 01.02.2023, mentioned supra and the letter dated 08.02.2023 of the President of Pakistan addressed to the Chief Election Commissioner, it is necessary to look into the nature, scope, constitutional mandate and constitutional responsibility of the “ECP”. It is not out of place to mention here that the Governor vide his letter 01.02.2023 addressed to the ExParliamentary Leader of “PTI”, has reaffirmed that he will discharge his responsibilities and duties in line with the “Constitution” and law as and when required.
On the other hand, perusal of Part-VIII of the “Constitution” shows that the Constitution in Articles 213 to 226 contained in Chapters 1 and 2 of the said Part, defines and elaborates the nature, scope, powers and purposes of the “ECP”. Article 218(3) of the “Constitution” provides that “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." Article 219(d) of the “Constitution” further provides that the “ECP” is charged with the duty of “the holding of general elections to the National Assembly, Provincial Assemblies and the local governments”. Similarly, Article 220 provides that “it shall be the duty of all executive authorities in the Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions”.
Although, Article 224(2) read with Article 105 and 112 of the “Constitution” does not specifically mentions the authority to declare a date of election in a provincial assembly in case it stands dissolved by operation of law but in the light of jurisprudence developed in aforesaid judgments, it can safely be concluded that the “ECP” being apex, independent and neutral constitutional authority mandated under the “Constitution” to hold, organize and conduct elections in Pakistan in accordance with law is the ultimate constitutional authority to ensure compliance of Article 224(2) of the “Constitution” under the doctrine of Penumbra which refers to a legal principal that recognizes certain unenumerated rights and obligations as implicit in the guarantees of the Constitution which can also be termed as constitutional penumbras. Under this doctrine, a specific provision of a Constitution or a State should not be read in isolation and it must be considered in the context of other relevant and connecting provisions of a constitution or a statute which underlying values and principles of the constitution as a whole. The doctrine if penumbra enable the Courts in interpreting various provisions of the constitution in order to enforce those rights and obligations which are explicitly mentioned in the text of a particular provision of the constitution or a law. Keeping the aforesaid doctrine in view, when Articles 218(3) which cast a constitutional duty upon the “ECP” to organize and conduct elections and to ensure that the election is conducted in accordance with law
that is the “Constitution”, the “Act” and the Elections Rules, 2017 read with Article 219(d) which charged the “ECP” with the duty of holding the general elections to the provincial assemblies read with Article 224(2) and 220 of the “Constitution” which cast a duty on all the executive authorities in the federation and in the provinces to assist the “ECP” in discharge of its constitutional functions, are being considered together being connecting and relevant provisions, the obligation and duty of the “ECP” to declare the date of general election for the Province comes within the penumbra of these constitutional provisions and elections laws.
In view of the constitutional provisions mentioned above and the judgments of the Supreme Court of Pakistan, the prayer made in the “consolidated petitions” is allowed and 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”.
Writ Petition No.5851 of 2023
Pakistan Tehreek-e-Insaaf through its General Secretary Asad Umar V/S Governor of Punjab and another
Writ Petition No.6118 of 2023
Munir Ahmad V/S The Governor of Punjab and others
Writ Petition No.6093 of 2023
Zaman Khan Vardag V/S Province of Punjab and another
Writ Petition No.6119 of 2023
Sabir Raza Gill V/S Governor of Punjab
Dates of Hearing:
30.01.2023, 03.02.2023, 09.02.2023 and 10.02.2023
Decided on 10-02-2023
