IN THE SUPREME COURT OF PAKISTAN
(Original/Appellate Jurisdiction)
Present:
Justice Qazi Faez Isa, CJ
Justice Amin-ud-Din Khan
Justice Athar Minallah
Constitution Petition Nos. 32 and 36 of 2023
Supreme Court Bar Association of Pakistan through
its Secretary, Islamabad and others.
(in Const. P. No. 32/23)
Munir Ahmed.
(in Const. P. No. 36/23)
… Petitioners
Versus
Federation of Pakistan through Secretary,
Cabinet Division, Islamabad and others.
(in both Constitution Petitions)
… Respondents
And
Civil Misc. Appeal Nos. 118 and 119 of 2023 in Const.P.NIL/2023
Pakistan Tehreek-e-Insaf (PTI), Islamabad through
its Secretary General and another.
(in CM Appeal No. 118/23)
Ibad-ur-Rehman Lodhi, ASC.
(in CM Appeal No. 119/23)
… Appellants
Versus
Election Commission of Pakistan through Chief
Election Commissioner, Islamabad and others.
(in CM Appeal No. 118/23)
The Registrar, Supreme Court of Pakistan,
Islamabad and others.
(in CM Appeal No. 119/23)
… Respondents
For the Petitioners: Mr. Abid S. Zuberi, ASC.
(In Const.P.No.32/23) assisted by Miss Amna Khalili, Adv.
and Agha Ali Durrani, Adv.
Mr. Muqtadir Akhtar Shabbir, ASC.
Mr. Shakeel-ur-Rehman, ASC.
Ms. Bushra Qamar, ASC.
Mr. Saim Chaudhry, ASC.
Mr. Irfan Mir Halepota, ASC.
(Through video-link from Karachi)
For the Petitioner: Mr. Anwar Mansoor Khan, Sr. ASC.
(In Const.P.No.36/23)
Constitution Petition No. 32/2023 etc. 2
For the Appellant: Syed Ali Zafar, ASC.
(In CM Appeal 118/23) assisted by
Syed Haider Ali Zafar, Adv.
For the Appellant: Mr. Ibad-ur-Rehman Lodhi, ASC.
(In CM Appeal 119/23)
For the Federation: Mr. Mansoor Usman Awan,
Attorney-General for Pakistan.
assisted by
Maryam Ali Abbasi, Adv.,
Mr. Ahmed-ur-Rehman, Adv. and
Mr. Saad Javid Satti, Adv.
Ch. Aamir Rehman,
Additional Attorney General for Pakistan.
For Govt. of Punjab: Mr. Waseem Mumtaz Malik,
Additional Advocate-General, Punjab.
For Govt. of Sindh: Mr. Saulat Rizvi,
Additional Advocate-General, Sindh.
For Govt. of
Khyber Pakhtunkhwa: Mr. Sultan Mazher Sher Khan,
Additional Advocate-General, KP.
For Govt. of Balochistan: Mr. Ayaz Khan Swati,
Additional Advocate-General, Balochistan.
For Islamabad
Capital Territory: Mr. Ayaz Shaukat,
Advocate-General, Islamabad.
For the ECP: Mr. Sajeel Sheryar Swati, ASC.
Mr. M. Arshad, DG (Law) ECP.
Mr. Khurram Shehzad, Addl. DG (Law) ECP.
Mr. Falak Sher, Legal Consultant, ECP.
Date of Hearing: 03.11.2023.
JUDGMENT
Qazi Faez Isa, CJ. Constitution Petition No. 32 of 2023 was filed by the
Supreme Court Bar Association of Pakistan by its Secretary and three
Members, on 16 August 2023, and was represented by the learned Mr. Abid
S. Zuberi. Constitution Petition No. 36 of 2023 was filed by Mr. Munir
Ahmed, an Advocate of the High Court, on 13 September 2023, but he
remained absent throughout and replaced his counsel with learned Mr.
Anwar Mansoor Khan today, when matters stood almost concluded. The
petitioners want early elections but surprisingly did not seek their petitions’
early hearing.
Constitution Petition No. 32/2023 etc. 3
- Civil Miscellaneous Appeal No. 118 of 2023 was filed by the Pakistan
Tehreek-e-Insaf (‘PTI’) through its Secretary General, Mr. Omer Ayub, on 28
August 2023, and PTI was represented by the learned Mr. Ali Zafar and
Civil Miscellaneous Appeal No. 119 of 2023 was filed by Mr. Ibad-urRehman Lodhi, an Advocate of the Supreme Court, against objections to
their maintainability. Such appeals are usually heard by a Judge-inChambers, but since the same relief was sought in the petitions these
appeals too were ordered to be fixed in Court. - The National Assembly was dissolved on the advice of the Prime
Minister on 9 August 2023, and the Chief Ministers of the provinces
advised the dissolution of the provincial assemblies. The President of
Pakistan was required to ‘appoint a date, not later than ninety days from the
date of the dissolution, for the holding of a general election to the Assembly.
1
And, the Elections Act, 2017 requires the notification of the Election
Programme, including the date of the general election, as under:
‘57. Notification of Election Programme. (1) Subject to
the Constitution, the Commission shall by notification in the
official Gazette announce the date or dates, as the case may
be, of the general elections.’ - However, general election is not being held within the stipulated
period because of the belated conduct of the ‘7th Population and Housing
Census, 2023’ (‘the 7th Census’). Census is held pursuant to section 31 of
the General Statistics (Re-organization) Act, 2011. After a census is held
the Council of Common Interest (‘CCI’) approves it, pursuant to Article
154(1) of the Constitution read with the ninth entry of Part-II of the Federal
Legislative List.2 - The CCI had approved the previous census, the ‘6th Population and
Housing Census, 2017’ (‘the 6th Census’), on 12 April 2021, that is after a
period of about four years, and directed that the process of the next census
be commenced:
‘The CCI decided to approve the Final Results of the 6th
Population and Housing Census, 2017 in the larger national
interest. The Decision was taken by majority vote, in terms of
Rule 5(10) of the Rules of Procedure of the Council of
Common Interests, 2010, as seven members supported the
approval of Final Census Result while the Chief Minster
Sindh opposed it. The CCI directed that the process of next
1 Constitution of the Islamic Republic of Pakistan, Article 48(5)(a).
2 Constitution of the Islamic Republic of Pakistan, Fourth Schedule.
Constitution Petition No. 32/2023 etc. 4
Census should start as early as possible according to
international best practices by using latest technology.’
A proviso to Article 51(5) of the Constitution was added on 22 December
2017,3 stating:
‘(5) The seats in the National Assembly shall be allocated
to each province and the Federal Capital on the basis of
population in accordance with the last preceding census
officially published:
‘Provided that for purposes of the next general elections to be
held in 2018 and bye-elections related thereto, the allocation
shall be made on the basis of provisional results of the 2017
census which shall be published by the Federal
Government.’
- Pursuant to the decision of CCI taken on 5 August 2023 the 7th
Census was carried out. However, since the proviso to Article 51(5) of the
Constitution had restricted the application of the 6th Census to the ‘general
elections to be held in 2018 and bye-elections related thereto’, it necessitated
that another census be undertaken for the next general election, that is,
the 7th Census. - A census is followed by delimitation. Article 222(b) of the Constitution
empowers Parliament to make laws providing for the ‘delimitation of
constituencies’, and Delimitation of Constituencies is provided in Chapter III
of the Elections Act, 2017. The Election Commission of Pakistan (‘ECP’)
issued notification dated 17 August 20234 setting out the ‘schedule for
carrying out of delimitation of constituencies afresh in accordance with the
official result of 7th Population and Housing Census, 2023’. As per the ECP’s
said notification, the first step towards delimitation was taken on 17
August 2023 and the last action was the ‘Final Publication of Delimitation’
which is to take place on 14 December 2023; but, we were informed that an
amendment was made on 1 September 2023 which brought forward the
date of ‘Final Publication of Delimitation’ to 30 November 2023. - Article 224(2) of the Constitution also requires that general election
‘shall be held within a period of ninety days after the dissolution’. However,
CCI took almost four years to approve the 6th Census, which delayed the 7th
Census and in turn delayed delimitation. Section 57(2) of the Elections Act,
2017 stipulates that within ‘seven days of the announcement under sub-
3 Constitution (Twenty-Fourth Amendment) Act, 2017.
4 No.F.9(1)/2021-Elec-I.
Constitution Petition No. 32/2023 etc. 5
section (1)’ of section 57, the election programme is announced, which, we
were told, requires a minimum period of 54 days.
- All the learned counsel are of the unanimous view that it is no longer
possible to hold elections within ninety days of the dissolution of the
assemblies. The learned Syed Ali Zafar by referring to Article 254 of the
Constitution stated that if for the doing of any act a particular period is
prescribed but it was not done within such period it would not render the
act invalid or ineffective. Article 254 of the Constitution is reproduced
hereunder:
‘When any act or thing is required by the Constitution to be
done within a particular period and it is not done within that
period, the doing of the act or thing shall not be invalid or
other-wise ineffective by reason only that it was not done
within that period.’ - In three of the cases before us the President is arrayed as a
respondent. Constitution Petition No. 36/2023 attaches a message of the
President, conveyed through social media (X, formerly Twitter) calling for
the views of the ECP on the announcement of a date for holding elections. If
the said message was that of the President, it leads one to question
whether the country can be run on the basis of messaging on social media. - The President of Pakistan and the ECP subsequently reached an
impasse. The correspondence between the two ended with the President’s
letter of 13 September 2023, which concluded:
‘THEREFORE, taking into account all the above, the Election
Commission of Pakistan in consultation with Provincial
Governments and political parties under the relevant
provisions of the Constitution and in view that some of these
matters are already subjudice, may seek guidance from the
Superior Judiciary for announcement of a single date for
general election to the National and Provincial Assemblies.’5
ECP confirms the receipt of the above letter, which we are informed it
did not reply to. - We pointed out to the learned counsel, that if their contentions
required the interpretation of the constitutional provision it would attract
section 4 of the Supreme Court (Practice and Procedure) Act, 2023, and a
larger bench in terms thereof would have to be constituted. But, all the
learned counsel stated that at this juncture they only want general election
5
President’s letter dated 13 September 2023 to the ECP filed with CMA No. 9293/2023.
Constitution Petition No. 32/2023 etc. 6
to be held and have no objection to this three-member Bench hearing the
cases to achieve this objective.
- Therefore, in order to ascertain how soon the general elections could
be held, notices were issued, and 2 November 2023 was fixed as the next
date of hearing on which date the following order was passed:
‘… the Election Commission of Pakistan’s (‘ECP’) counsel
states that the process of delimitation is underway, which
will conclude on 30 November 2023, and publication of the
final result of the delimitation will be by 5 December 2023.
Thereafter, the election programme is to be announced in
terms of section 57(2) of the Elections Act, 2017, which
provides certain timeframes and will conclude on 29 January
2024.’
‘ECP’s counsel further states that to maximize public
participation elections should ideally be held on a Sunday,
and the first Sunday after the above timeframe would be 4
February 2024. However, to enable political parties to convey
their respective programmes and manifestoes it would be
appropriate to hold elections on Sunday, 11 February 2024.’
‘Let the ECP meet with the President of Pakistan today and
the date for holding general elections in Pakistan be
appointed. In this regard, the Attorney-General for Pakistan
will arrange such meeting and shall provide to the President
this Court’s order of 23 October 2023 and today’s order, and
be available to render assistance.’
‘We expect that the matter of appointing a date for holding
general elections shall be settled, and this Court will be
informed tomorrow, that is, 3 November 2023.’ - The President in his letter (of 13 September 2023) had sought
guidance from Superior Judiciary. The only possible avenue for the
President to seek the Supreme Court’s opinion was by invoking Article 186
of the Constitution, reproduced hereunder:
‘186. (1) If, at any time, the President considers that it is
desirable to obtain the opinion of the Supreme Court on any
question of law which he considers of public importance, he
may refer the question to the Supreme Court for
consideration.
(2) The Supreme Court shall consider a question so referred
and report its opinion on the question to the President.’ - However, the President did not seek recourse to Article 186 requiring
the Supreme Court to give its opinion. Needless to state, this was the only
constitutionally permissible manner for the Supreme Court to provide
guidance. The Supreme Court and the holder of every constitutional office
Constitution Petition No. 32/2023 etc. 7
and every constitutional body, including the President and the ECP, must
act in accordance with the mandate of the Constitution. Abiding by the
Constitution is not optional. It is equally important that no institution
transgresses into the constitutional jurisdiction of another. A matter which
should have been dealt with by the President and the ECP was quite
unnecessarily brought to this Court. Cognizant of the constitutional
scheme and fully aware of the limit of our constitutional jurisdiction, we
were careful not to encroach on the jurisdiction of the President, nor that of
the ECP. - Since the election date was not announced, concerns were rising
amongst the people of Pakistan, where many of them apprehended that
elections may be indefinitely postponed or not take place, which
undoubtedly would cause irreparable damage to democracy and the
country. Conscious of the Supreme Court’s lack of jurisdiction and careful
not trespass on the jurisdiction of the President and of the ECP, we
encouraged them to meet and determine that which was within their
constitutional domain. They met yesterday (2 November 2023) and the
meeting proved to be a success. - Mr. Mansoor Usman Awan, the learned Attorney-General for
Pakistan, brought a letter issued by the Secretary to the President,6 which
states that, ‘after a briefing by Election Commission of Pakistan followed by
due deliberation, there was an agreement to announce the date of Thursday,
8th February, 2024 for holding General Elections’. The ECP has also filed
documents,7 including the minutes signed by the Chief Election
Commissioner and the four Members of the ECP, which state, ‘The
Commission and the Honourable President during meeting in the President
House agreed to appoint 8th February, 2024 as a poll date for General
Election 2024.’ The ECP has also issued a notification dated 3 November
2023, which states that 8 February 2024 is the poll date for general election
to the National Assembly and the provincial assemblies. The learned
Attorney-General, on behalf of the Federal Government, and the respective
law officers, on behalf of the four provinces and the Islamabad Capital
Territory, have also expressed their concurrence for the holding of general
election on the said date.
6
President Sectt. (Public)’s u.o. No. 7/3/2023/FA&PA dated 3rd November, 2023.
7 CMA No. 9391/2023.
Constitution Petition No. 32/2023 etc. 8
- The President of Pakistan and the ECP have announced the date for
holding of general election to the National Assembly and to the provincial
assemblies. The Federal Government, the Provincial Governments and the
Islamabad Capital Territory have concurred. The matter of the holding of
general election on 8 February 2024 stands resolved. No one should now
put forward any pretext to derail democracy. - The higher the constitutional office or body the greater is the
responsibility. Obedience to the Constitution and law is an inviolable
obligation of every citizen,8 however, an added responsibility and obligation
is placed on all those who assume their office by taking an oath.9 The
President takes the prescribed oath10 and so too the Chief Election
Commissioner and Members of the ECP.11 The Constitution has subsisted
for fifty years; there is no longer any excuse to remain ignorant of the
Constitution. Incidentally, on this very day (3 November 2007) a grave
constitutional transgression took place sixteen years ago, and like it every
constitutional deviation has long lasting effects. We must abide by the
Constitution and realise mistakes which have had a calamitous effect on
the people and the territory of Pakistan. It is about time that courts cease
to be involved in political disputes, which take up considerable court time;
time which would be better spent doing what this Court is required to do. - This President had earlier dissolved the National Assembly when the
Prime Minister faced a vote of no confidence. Despite the fact that the
Constitution clearly mandated that once the requisite number of members
had given a notice of a resolution for a vote of no confidence in the National
Assembly, the power to advise dissolution of the National Assembly no
longer remained with the Prime Minister. Therefore, the President could not
dissolve the National Assembly. But the Constitution was disregarded,
triggering a constitutional crisis, which then had to be redressed by this
Court, in the case reported as Pakistan Peoples Party Parliamentarians v
Federation of Pakistan.
12 It was pointed out by the Chief Justice and four
Judges of this Court what was manifestly clear, that a Prime Minister
facing a vote of no confidence could not advise the dissolution of the
National Assembly. The purported dissolution of the National Assembly was
declared unconstitutional and held to be of no legal effect. One of the
8 Constitution of the Islamic Republic of Pakistan, Article 5.
9
Ibid., Third Schedule.
10 Ibid, Article 42.
11 Ibid, Article 214.
12 PLD 2022 Supreme Court 574.
Constitution Petition No. 32/2023 etc. 9
learned Judges opined that there should be consequences for such a
blatant transgression of the Constitution:
‘… the Constitution opens by stating that the exercise of
authority “is a sacred trust” and can only be exercised
through “the chosen representatives of the people.” However,
this sacred trust was violated amongst others by the
President, PM, the Speaker, the Deputy Speaker and the Law
Minister as the elected representatives of the people were
prevented from voting on the resolution and for such blatant
transgression of the Constitution there must be
consequences and the law must take its course.’13
And that for such an unconstitutional act Article 6 of the Constitution may
be invoked:
‘… acts attract Article 6 of the Constitution is also left open
to be determined by the Parliamentarians as to whether they
leave open the doors for such unconstitutional acts or take
suitable measures to stop such like mess in future.’
- On that occasion (3 April 2022) the President had dissolved the
National Assembly by using a power not vesting in him, while in the
present case he did not use a power which he did possess. Constitutional
office holders must adhere to the Constitution; fulfil the duties assigned to
them as a sacred trust, and divest themselves from all that is outside their
constitutional domain; only then do they serve the people of Pakistan.
Pakistan was established democratically, is a democracy and must remain
one. When general elections are due they have to be held. We are humbled
in facilitating the President and the ECP to do right by the people of
Pakistan. - In conclusion, we want to acknowledge the role of the media. Article
19 of the Constitution decrees that: ‘there shall be freedom of the press’,
subject to the stated reasonable restrictions. But some have construed this
freedom as a license to disinform and build a false narrative, and do so to
undermine democracy. The Pakistan Electronic Media Regulatory Authority
(‘PEMRA’) prohibits content which ‘incites or condones dislodgment of
democratic setup against the command of the Constitution of Pakistan,
provided that discussions on improvement of democracy shall constitute a
fair comment’.14
13 Ibid., per Mazhar Alam Khan Miankhel, J.
14 PEMRA’s Electronic Media Code of Conduct 2015, section 3(1).
Constitution Petition No. 32/2023 etc. 10
- A decreased confidence in democracy diminishes people’s engagement
with it and suppresses voter turnout. A study conducted by the European
Parliament found, that:
‘Disinformation also has far-reaching implications for human
rights and democratic norms worldwide. It threatens freedom
of thought, the right to privacy and the right to democratic
participation, as well as endangering a range of economic,
social and cultural rights. It also diminishes broader
indicators of democratic quality, unsettling citizens’ faith in
democratic institutions not only by distorting free and fair
elections, but also fomenting digital violence and
repression.’15
However, this Court appreciates those in the media who perform their
duties professionally and truthfully. - We would like to commend the learned Attorney-General for
Pakistan, the learned law officers and the learned counsel for their positive
assistance and facilitation for the quick disposal of these cases.16 - These matters are allowed in the aforesaid terms.
- In view of the public importance of this matter, this judgment is to be
translated into Urdu. However, the English version shall be treated as this
Court’s decision.
Chief Justice
Judge
Judge
Islamabad:
03.11.2023
(M. Tauseef)
Approved for Reporting
15 ‘The impact of disinformation on democratic processes and human rights in the world’ Carne Colomina,
Hector Sanchez Margalef, Richard Youngs, European Parliament, Directorate-General for External Policies.
16 These cases were fixed for hearing in Court on 23 October, heard on 2 and 3 November and decided on 3
November 2023, that is, within 12 days.