The Supreme Court Bar Association of Pakistan (SCBAP) has filed a Constitution Petition before the Supreme Court to direct the Election Commission of Pakistan (ECP) to announce a date for general elections within 90 days of the dissolution of National Assembly, as mentioned the in Article 224(2) of the Constitution of Islamic Republic of Pakistan, 1973.
The Petition has been drafted by SCBA President Abid Shahid Zuberi & Irfan Mir Halepota, Member Executive Committee, Supreme Court Bar Association of Pakistan.
An other grounds and prayer mentioned in the petition is to declare decision of the Council of Common Interests (CCI) dated 5th August, 2023 and the subsequent notification of the Cabinet Division dated 7th August, 2023, granting approval to the digital census, as illegal and in violation of the provisions of the Constitution of Islamic Republic of Pakistan. The petition also requests the apex court to suspend the operation of CCI’s decision dated 5th August, 2023 and order the ECP to announce the election date forthwith.
One of the major ground for this petition is that the CCI was not properly constituted for holding its meeting on 5th August, 2023, as the caretaker chief ministers of Punjab and Khyber Pakhtunkhwa had no statutory or constitutional right to participate in the CCI meetings, hence same was coram non judice and without jurisdiction. All decisions made during that meeting were liable to be set aside since .
The approval of digital census 2023, less than a week prior to dissolution of the national and two provincial assemblies, had created a constitutional dilemma, which is required to be resolved by the Supreme Court.
Under the Constitution and Elections Act 2017, the primary function of ECP and a caretaker government is to hold elections in accordance with the law, but both the caretaker chief ministers of Punjab and KP had miserably failed to hold elections within 90 days of their dissolution as stipulated under Article 224 (2).
As per Article 51 (5) of the Constitution, the National Assembly seats are to be allocated to each province and the federal capital on the basis of population in accordance with the last preceding census officially published. No seats have been allocated under Article 51 (1) and (3) on the basis of population in accordance with the last preceding census i.e. the impugned decision and impugned notification through a constitutional amendment to this article.
ECP cannot initiate the process of delimitation under the Elections Act 2017 as well as Rule(s) 7 and 8 of the Election Rules 2017, as there is no seat allocation based on the CCI decision as delimitation of constituencies of the National Assembly can only be carried out after allocation of seats on the basis of the last preceding census.
The allocation of seats for the National Assembly provided under Article 51 (1) and (3) is based on the population census of 2017, hence the same cannot be considered ‘seat allocation’ on the basis of population in accordance with the last preceding census officially published i.e. impugned decision.