ISLAMABAD: Speaker Khyber Pakhtunkhwa Assembly Mushtaq Ghani has filed Contempt of Court petition against Governor Ghulam Ali and Election Commission of Pakistan (ECP) for didn’t announcing schedule for provincial assembly election despite Supreme Court of Pakistan (SCP) decision.
The COC stated that the Petitioner, Speaker of the dissolved Provincial Assembly of Khyber Pakhtunkhwa, very humbly implores kind indulgence of the SCP that the Petitioner, as the calendar of parties in this petition reads, is the duly chosen Speaker of the Provincial Assembly of Khyber Pakhtunkhwa. As the events unfolded, the Provincial Assembly of Khyber Pakhtunkhwa was dissolved by the Contemnor/Respondent No. 1 on January 18, 2023 (As Governor KP) while acting on the advice of the then Chief Minister under Article 112(1) of the Constitution. Upon dissolution of the Assembly, Contemnor/Respondent No. 1 was immediately obligated, as the very first imperative under Article 105(3) ibid to “appoint a date for the holding of a general election thereto, being a date not later than 90 days from the date of the dissolution”. As the Constitution enumerates, this obligation of the Governor precedes even his other duty to appoint a caretaker government to perform day to day functions until the election of the next government, in terms of Articles 224 and 224A of the Constitution.
The COC added that it is a matter of record that soon after such dissolution of Provincial Assembly of Khyber Pakhtunkhwa, Respondent No. 2 ECP had written a number of letters, repeatedly urging and requesting the Contemnor/Respondent No. 1 to discharge his constitution obligation and appoint the date of poll for the ensuing general election within Province of Khyber Pakhtunkhwa. Although the Constitution does not leave any room for doubts or uncertainties and the role of the Contemnor/Respondent No. 1 is merely to appoint a date and nothing more, yet, Contemnor/Respondent No. 1 had been creating and propagating doubts, qualms, fears and misgivings about holding of general elections within the constitutionally guaranteed deadline of 90 days on one pretext or the other. He had been brazenly giving interviews in print and electronic media, maintaining that he does not see elections to happen within constitutional timeframe.
Instead of discharging his constitutional responsibility and living up to the language of his oath of office, administered to him at time of entering upon his office, under Article 102 of the Constitution and as set out in Third Schedule to the Constitution that he shall discharge his duties, and perform his functions, honestly, to the best of his ability, faithfully, in accordance with the Constitution of the Islamic Republic of Pakistan and the law and that he will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan, the Contemnor/ Respondent No. 1 chose to ignore the exalted status of his high constitutional office and while willfully defying of the mandate of Article 5 and exposing himself to the risk of proceedings under Article 6, he had been striving to find loopholes in the Constitutional scheme to avert and indefinitely postpone the general elections in Khyber Pakhtunkhwa. On receiving a chain of letters from Respondent No. 2 ECP, instead of giving a date, the Contemnor/Respondent No. 1 had started exchanging letters with caretaker provincial government and kept asking them to examine law and order situation and other absolutely extraneous considerations and whether elections can be held or not.
The Contemnor/Respondent No.1 clearly appeared in mood of defying the Constitution with a self-assumed sense of impunity, and while the date of general election in Punjab was also not been given, the Petitioner and Muhammad Sibtain Khan collectively approached this Honorable Court through Const. Petition No. 02 of 2023. As the Constitutional timeframe to hold general elections within 90 days was expiring fast and things were not at all moving, the Honorable Chief Justice of Pakistan was, in the meanwhile, also took Suo Motu notice of the matter on 22.02.2023 and fixed the matter before a Larger Bench comprising nine (09) Honorable Judges of this Court on 23.02.2023 alongside the Constitutional Petitions No .1 and 2 of 2023. Some of the Honorable Judges recused themselves and/or dissociated from the Bench, hence the Bench was reconstitution and the case was thereafter heard on several dates and finally decided on 01.03.2023 with a majority of 3:2 required the Contemnor/Respondent No. 1 to appoint a date of general election forthwith, COC argued.
The majority judgment, so read in the open court on 01.03.2023 and uploaded on the website of Supreme Court inter alia reads: “10. On a conjoint reading of the foregoing provisions we conclude and hold as follows: a. In situations where the Assembly is dissolved by an order of the Governor, the constitutional responsibility of appointing a date for the general election that must follow is to be discharged by the Governor as provided in terms of Article 105(3)(a). These are the situations described in paras 5 and 6(a) above.”
In ordinary circumstances the general election to the Punjab Assembly ought to be held on 09.04.2023, the date announced by the President in terms of his order of 20.02.2023. However, we are informed that on account of the delay in the emergence of the date for the holding of the general election, it may not be possible to meet the 90 days deadline stipulated by the Constitution. It is also the case that (possibly on account of a misunderstanding of the law) the Election Commission did not make itself available for consultation as required under s. 57(1) of the 2017 Act.
The Election Commission is therefore directed to use its utmost efforts to immediately propose, keeping in mind ss. 57 and 58 of the 2017 Act, a date to the President that is compliant with the aforesaid deadline. If such a course is not available, then the Election Commission shall in like manner propose a date for the holding of the poll that deviates to the barest minimum from the aforesaid deadline. After consultation with the Election Commission the President shall announce a date for the holding of the general election to the Punjab Assembly. The Governor of the KPK Province must after consultation with the Election Commission forthwith appoint a date for the holding of the general election to the KPK Assembly and the preceding clause (a) shall, mutatis mutandis, apply in relation thereto.”
In response, Respondent No. 1 appeared on mainstream media/news channels on primetime and audaciously said that he has not opened the letter as yet and will open it after the weekend and allowed days after days to pass without any progress and thus the constitutional timeline to be violated in most barefaced and insolent defiance of the majority judgment of this court. The COC stated that it is therefore very humbly prayed that the proceedings may very graciously be initiated against Haji Gulam Ali, Governor Khyber Pakhtunkhwa under Article 204 of the Constitution, Section 3 of the Contempt of Court Ordinance, 2003 and Order XVII of the Supreme Court Rules, 1980 and punish him accordingly. Any other relief, not specifically prayed, may also graciously be granted, if appears just, necessary and appropriate.
Election schedule for KP Assembly: Speaker files contempt of court against Governor