2023 PLP 1105 (MLD)

SHAHID KARIM, J.

This order shall also decide connected Writ Petition No. 8645/2023 as similar issue of law is involved.

2. These constitutional petitions bring a challenge to the notification issued by Election Commission of Pakistan (ECP) on 22.01.2023 which reads as under: "No. F.2(5)/2023-Cord:

Pursuant to the proviso of Clause (3) of Article 224A of the Constitution of the Islamic Republic of Pakistan and as a result of detailed deliberations made on 22nd January, 2023, the Election Commission of Pakistan has unanimously decided to appoint Syed Mohsin Raza Naqvi as Care-Taker Chief Minister, Punjab with immediate effect."

3. Learned counsel for the petitioner contends that the notification has been issued by exercise of discretion which needs to be structured and the notification itself provides that the ECP indulged in detailed deliberations prior to issuance of notification. That material ought to be placed before this Court to analyze whether the decision made by ECP was in conformity with the Rules of Administrative Law relating to reasonableness and rationality. On the other hand, learned counsel for ECP and the Additional Attorney General for Pakistan stated that discretion exercised by ECP is within the jurisdiction conferred upon it by proviso to Article 224A(3) of the Constitution of Islamic Republic of Pakistan (Constitution) under the prescribed circumstances. The relevant provision provides as under: "The Committee constituted under clause (1) or (2) shall finalize the name of the care-taker Prime Minister or care-taker Chief Minister, as the case may be, within three days of the referral of the matter to it: Provided that in case of inability of the Committee to decide the matter in the aforesaid period, the names of the nominees shall be referred to the Election Commission of Pakistan for final decision within two days."

4. The historical facts are not in dispute. The Provincial Assembly of Punjab was dissolved on the advice by the Chief Minister and stood dissolved at the expiration of 48 hours in terms of Article 112 of the Constitution. Thereafter, process for the appointment of care-taker Chief Minister as well as care-taker Cabinet ensued. Since the leader of the House and the leader of the Opposition did not agree to a joint candidate for being appointed as care-taker Chief Minister, matter was referred to the ECP in terms of Article 224A of the Constitution. It can be seen from the proviso to Clause (3) of Article 224A of the Constitution that the matter has been left to the discretion of ECP for final decision within two days in case of inability of the Committee to decide the matter within three days of its referral to that Committee under Clause (3). This was done by the ECP by issuance of impugned notification.

5. The facts which will exercise gravitational pull on the decision of this petition must be dealt with firstly. None of the members of the Committee constituted under Clause (2) of Article 224A has challenged the appointment of care-taker Chief Minister which has been done by the petitioner who claims to be a voter of one of the constituencies in Punjab. Further, leader of opposition has also not chosen to challenge the appointment of respondent No.12 as care-taker Chief Minister. Although this aspect will not be conclusive in deciding the instant petition an inference can very well be drawn by this Court as to the nature and seriousness of the challenge made. None of the functionaries involved in the entire process have chosen to attack the process and so the process to that extent has been lent credibility. The decision of the ECP, it would seem, does not suffer from any illegality in the opinion of any of the opposition parties as also members of the Committee.

6. I tend to agree with Mr. Nasar Ahmed, Additional A.G., Government of Pakistan that the doctrine relating to structuring of discretion does not apply to powers which are conferred under the constitutional scheme on high constitutional bodies such as ECP. Structuring of discretion stems from doctrine of non-delegation. It applies to delegation of powers made by the legislature on subordinate authorities to be exercised within confines of the powers mentioned in the primary legislation itself. It is in those cases that issues relating to structuring of discretion arise on the basis of which courts can decide whether the delegatee has exceeded power conferred upon it by the delegator. The ECP is a constitutional body and has been tasked with making decision regarding appointment of a care-taker Chief Minister and. this Court will not go into the merits of that decision. It is only concerned with the process and this view is based on a cluster of judgments by the superior courts which constrain this Court from entering into the merits of the decision made by ECP. Deference must be given to the decision made by ECP which merely chose one of the candidates referred to it on the recommendation of the Chief Minister and the Leader of the Opposition. There is no intelligible criteria on the basis of which this Court can substitute its opinion for that of the ECP. This is broadly a political question and should have been resolved by the political leadership which sadly was not done. They themselves allowed the issue to be decided by ECP and so deferred to the process. Decisions made by the exercise of constitutional powers can only be interfered with by superior courts if they contravene the Constitution itself. The deliberative process of ECP and its merits is not susceptible to judicial review by this Court. None of the learned counsel for the petitioners have pointed out any illegality or jurisdictional error committed by the ECP in the appointment process which would render the appointment of respondent No.12 as ultra vires and unconstitutional. These petitions are without merit and are dismissed. SA/R-9/L Petitions dismissed.