ISLAMABAD: After several hours of automatic notice process related to Punjab and Khyber Pakhtunkhwa elections, the Supreme Court on Tuesday ordered the relevant political parties to hold consultations to fix the date of the elections.
The Supreme Court directed Pakistan Tehreek-e-Insaf (PTI) leaders Shireen Mazari and Fawad Chaudhry to consult party chairman Imran Khan and the lawyers of the coalition parties with their leaders and inform the court by 4 pm.
Chief Justice Umar Atta Bandial directed the politicians to sit together and find a solution, saying “[we] will decide the case today.”
These instructions came after the three major parties of the ruling coalition withdrew their request for formation of a full court bench to hear the Supreme Court’s suo motu notice on the delay in the Khyber Pakhtunkhwa and Punjab elections.
The Supreme Court is likely to take up the matter today (Tuesday) as Chief Justice of Pakistan Umar Atta Bandyal said during yesterday’s hearing that the Supreme Bench “wants to dispose of the case” as the elections have already been delayed. .
The bench, which now consists of just five members, was dissolved and reconstituted after dissenting notes and the withdrawal of four of its judges when the Supreme Court resumed hearing on its own on Monday.
The apex court had issued a written order on its website containing the dissenting notes of Justice Ijazul Ahsan, Justice Syed Mazahir Ali Akbar Naqvi, Justice Athar Manullah and Justice Yahya Afridi who recused themselves from hearing the case. was
After which a 5-member bench consisting of Justice Muneeb Akhtar, Justice Muhammad Ali Mazhar, Justice Mansoor Ali Shah and Justice Jamal Khan Mandukhel was formed under the chairmanship of Chief Justice Bandyal, which was presiding over the hearing yesterday.
The Supreme Court had taken suo motu notice of the apparent delay in the elections to the two assemblies on February 23 after President Arif Alvi announced the date for the elections, a move that drew severe criticism from the government.
According to the Chief Justice, the suo motu notice was taken to examine who is competent to issue the election date and who has the constitutional responsibility to hold the elections and when.
Coalition partners take back plea for full court
Earlier, the Pakistan Muslim League-Nawaz (PML-N), Pakistan People’s Party (PPP), and Jamiat Ulema-e-Islam-Fazl (JUI-F) had withdrawn the Full Court Bench plea in the case.
Two days after the Supreme Court took suo motu notice, the coalition parties filed a joint petition through Usman Awan, Farooq H Naik and Kamran Murtaza respectively.
Naik, while withdrawing the petition during today’s hearing, said that the coalition parties have jointly decided not to pursue the full court’s request after the reconstitution of the bench.
At the beginning of the hearing, the Attorney General of Pakistan told the court that he was ready to give arguments.
He objected to the inclusion of Supreme Court Bar Association President Abid Zuberi in the case, saying that his name has been removed from the court order.
On this, Chief Justice Bandyal said that the court sees SCBA as an institution.
He remarked that what is written in the court is not part of the court order, it becomes the order when the judge signs it.
Zuberi then began his arguments.
“The Supreme Court has in the past ruled that elections should be held within 90 days,” Zuberi said.
On which Justice Mandukhel remarked that the President and the Governor are obliged to follow the advice of the Cabinet according to the Constitution.
He inquired whether the president or the governor can give the date of the election on his own.
Meanwhile, Chief Justice Bandyal remarked that the governor is not constitutionally bound to follow anyone’s advice in appointing a caretaker government or deciding the date of elections.
While Justice Mazhar added that where there is discretion, there is no need for anyone’s advice.
The Chief Justice said that who will issue the notification to dissolve the assembly?
In response to the question, Zuberi said that the notification of the dissolution of the Punjab Assembly was issued by the Law Secretary.
90-day period starts after assembly dissolution: Justice Akhtar
On this occasion, Justice Akhtar remarked that the period of 90 days starts immediately after the dissolution of the Assembly.
Meanwhile, Justice Shah inquired whether the caretaker chief minister can advise the governor on the date of the election.
On this, Zuberi said that the caretaker set-up and the election date are announced simultaneously.
Justice Shah asked whether the governor can reject the advice of the caretaker government.
To this, Zuberi replied that the task of caretaker setup is to look at the government affairs instead of giving the date of elections, which is the prerogative of the governor.
Referring to the Saifullah case, he said that the decision of the 12-member bench in the case had made the election process mandatory.
On which Justice Mandukhel remarked that Article 48 of the Constitution states that every action and initiative of the President shall be on the advice of the Government.
Chief Justice Bandyal supported Justice Mandukhel’s remarks and said that the date of elections will be decided on consultation under Article 48.
On which Justice Akhtar remarked that the caretaker set-up takes place seven days after the dissolution of the Assembly.
“There is a need to harmonize the various provisions of the constitution,” he added.
Meanwhile, Justice Mazhar remarked that in the case of Punjab, the Ministry of Law issued the notification, not the Governor.
Justice Mandukhel said that the government can still ask the governor to conduct elections as per the constitution.
While Justice Shah inquired that if the governor gets the government’s advice regarding the date of the elections, how can he refuse to hold the elections.
Moving forward, Zuberi said that the caretaker setup in Punjab was established on January 22.
Justice Mazhar remarked that the main question is that the governor is saying that he did not dissolve the assembly.
Zuberi shared that according to Article 105(3) the process of giving date of election is mentioned.
Justice Mandukhel said that the government is not bound to give the date of elections.
Zuberi then complained that even after so many days, the date of the elections was not announced.
‘Spirit of Constitution’
On this, Chief Justice Bandyal asked Zuberi whether he is arguing that the government is not fulfilling its constitutional responsibility.
“Conducting elections within 90 days is the spirit of the constitution,” he observed, adding that the court would ask the AGP to assist him on legal points.
Meanwhile, Zuberi claimed that the President will announce the date of the elections when the term of the assembly ends.
“I contend that it is the prerogative of the President to fix the date of elections,” he added.
On which Justice Mazhar remarked that whenever the Governor gives a date, a margin of 52 days will be kept.
President’s power not stated clearly: Justice MandokhailÂ
Meanwhile, Justice Mandukhel remarked that “the powers of the President are not directly mentioned in the Constitution”.
“If the constitution does not have the powers, action will be taken according to law,” he said, adding that laws are based on the constitution.
Meanwhile, Justice Shah inquired under which law the President is writing the letter.
On this, Zuberi said that the President has written the letters for consultation.
To which the judge replied that there is no mention of consultation anywhere in the constitution.
Justice Mandukhel remarked that even if we assume that the law allows the President, he is bound to act on the advice.
Meanwhile, Justice Shah said that the caretaker government can also ask to decide the date.
On this, Chief Justice Bandyal remarked that the court will decide after hearing the other parties in the matter whether the President needs consultation or not.
Zuberi argued that the governor was not bound to follow the advice to announce the election date. He further said that the authority like the governor has been given to the president.
Zuberi concluded his arguments by saying, “The President is not bound by either advice.”
Justice Shah remarked that if the governor is advised to fix the election date, he is bound to act.
After that, AGP Shahzad Ata Elahi started his arguments.
He said that the President can give the date of elections only in case of dissolution of the National Assembly. He further said that the other scenario in which the President can give the date of the elections is when polling is taking place across the country.
On this, Chief Justice Bandyal remarked that there is a difference between the President’s discretionary and advisory decision-making powers.
AGP Elahi then argued that if the governor asked for elections to be held a day after the dissolution of the assembly, the ECP would not follow those orders.
On which Justice Akhtar remarked that the Governor has to take into account the Election Act.
The AGP remarked that the elections should be held in 90 days and the period should not be extended.
Justice Shah inquired whether the election commission can delay the elections after the governor announced the date.
To this, AGP replied that if the Governor orders to hold the elections on the 85th day after the dissolution of the Assembly, then the electoral body can ask to hold the elections in 89 days.
On this, Chief Justice Bandyal remarked that this is the reason why the Governor is bound to consult the ECP.
He said that whether it is the president or the governor, everyone is bound by the constitution and the law.
On which Justice Mazhar advised to hold a consultation between the Governor and the ECP and give a date for tomorrow.
On this occasion, the court adjourned the hearing of the case for half an hour.
President can’t announce polls date: AGP
When the hearing resumed, the AGP continued his arguments and said that the Constitution cannot be interpreted through parliamentary legislation.
He added that the Constitution is supreme and it does not allow the President to announce the date of elections.
He said that the Lahore High Court had clearly said that it is the power of the ECP to conduct the elections and announce the date.
He added that the elections were a “topic” for the Centre.
On this, Justice Akhtar said that the Election Commission has to fix the date of the election and the Governor has to announce it.
Justice Mandukhel intervened and said that if everything is clear, then what is the point of fighting?
Meanwhile, Chief Justice Bandyal observed that the hearing of intra-court appeals in the Lahore High Court was being adjourned for 14 days. He questioned why such an important constitutional issue was being kept pending for a long time.
Apart from this, the Chief Justice inquired under which provision of the Constitution the Election Commission has been empowered to decide the date of elections.
On which Justice Mazhar said that the authority of the Election Commission begins after the announcement of the election date, according to the Constitution.
The Chief Justice remarked that the President has some democratic and some undemocratic powers in this history.
On which Justice Mazhar inquired that if the President does not have the authority to give the date of election, then why not abolish Article 57. He questioned whether anyone has challenged Article 57 for being in conflict with the Constitution.
The judge also sought the AGP’s opinion on who has the authority to issue the date.
‘President’s role is central’
In response to the question, AGP Elahi said that the Election Commission has the authority to give the date of the election.
Responding to the AGP’s comment, Justice Mandukhel said that if the ECP is to announce the date, there is no need for consultation.
However, Justice Akhtar inquired that if this happens, where will the role of the governor and president go?
“Is the president’s role as a newscaster to announce?” He said, adding that the ECP should use its website if it was only to make an announcement.
On this, the Chief Justice remarked that the role of Election Commission is important in any case.
Addressing Justice Akhtar, Chief Justice Bandyal said that according to you, the role of the President is central, while on the other hand, he says that it is advisory.
Justice Akhtar asked whether the duration of the election campaign can be reduced.
In reply to the question, the ECP lawyer said that the process of printing the ballot papers takes time. However, he said that the duration of the election campaign can be reduced to two weeks.
Justice Akhtar remarked that implementation of the constitution is more important.
On this point, AGP Elahi argued that if the elections had to be held in 90 days, would the 1988 elections not become controversial?
He said that the 2008 elections were also held after the stipulated period.
On this, the Chief Justice reminded the AGP that there was a big tragedy in 2008. The Chief Justice mentioned the assassination of former Prime Minister Benazir Bhutto.
On this, Justice Mandukhel repeated the question that who will give the history?
He said that if the matter of fixing the date was clear in the law, we would not be standing at this place today.
ECP authorised to give election date, maintains AGP
On this, Chief Justice Bandyal remarked that the court will apply Article 254 where it is valid.
Justice Mazhar added that the ECP had recommended the date to the Governor.
On the other hand, Justice Mandukhel inquired whether the caretaker cabinet can send a summary to the governor.
AGP replied in the negative.
While Justice Mazhar inquired that if the Prime Minister does not send advice, how long should the President wait?
On this occasion, Justice Mandukhel remarked that Parliament could have given the responsibility to someone by making a law.
The AGP told the court that if the laws were passed today, Parliament would be ridiculed for being incomplete. He also reiterated that the ECP should announce the date of the elections as the 90-day period is nearing completion.
Concluding his arguments, he said that if the dictation on the election date has to come from somewhere else, the ECP can also refuse to perform other duties.
The AGP finished his arguments on this point and the ECP’s counsel started presenting the point of view of the electoral body.
‘ECP can give Senate, presidential and by-elections dates only’, SC told
ECP lawyer Shahryar Swati started the arguments and said that the Election Commission has to work under the constitution.
He said that Punjab and KP elections are being discussed in the case, while the Election Commission can give dates for Senate, presidential and by-elections.
The lawyer stressed that he maintains the position that the date of the election should be given by the governor.
On this, Chief Justice Bandyal remarked that the chief minister’s advice to dissolve the assembly has different utility because even if the governor does not dissolve the assembly, the order has to be followed.
On this, Justice Mandukhel inquired whether the lawyer of the Election Commission means that the Governor dissolves the Assembly or not.
The lawyer told the bench that the governor says he did not dissolve the assembly. He added that the ECP has written to the Governor to fix the date from April 9 to 13.
On this, Chief Justice Bandyal asked whether the governor issues the election date unilaterally or after consultation. He wondered if the governor was aware of the ECP schedule.
Swati then said that there was no need for consultation between the ECP and the Governor.
On this, Justice Mazhar remarked that the Lahore High Court had directed the governor to consult and the governor filed an intra-court appeal.
ECP’s lawyer told the bench that he had met the governor on the instructions of the Lahore High Court.
CJP asks about KP polls
On this occasion, the Chief Justice inquired whether the ECP had spoken to Governor KP for the date of the elections.
The ECP lawyer said that he has written a letter to the Governor.
Justice Mazhar remarked that all institutions are bound to help ECP during elections.
Informing the court about the consultation with the Governor KPK, the ECP counsel said that the Governor neither gave a date nor held any consultation despite the reminder.
He said that Governor KP asked the ECP to contact the agencies citing the law and order situation in the province.
Chief Justice Bandyal said that according to Governor KP, the date should be fixed after consultation with other institutions. He further said that it is the responsibility of the ECP to remain active on electoral issues.
The ECP’s job was to complete his work and get back in touch with the Governor. Chief Justice Bandyal said that the Election Commission should not just write letters.
On this, the Chief Justice directed the ECP to announce the date of elections in Punjab after consultation with other stakeholders including the Governor.
The court summoned Advocate General KP to the rostrum and asked what the Governor’s letter meant.
On this, the KP Advocate General said that the Governor will be authorized to decide the date only if he dissolves the Assembly, but in the case of KP, the Assembly was dissolved on the advice of the Chief Minister.
‘SC can only tell that who has to give polls date’: Justice Shah
Later, the Supreme Court directed Pakistan Tehreek-e-Insaf leaders Shireen Mazari and Fawad Chaudhry to consult party chairman Imran Khan and the lawyers of the coalition parties with their leaders and update the court by 4 pm.
Meanwhile, Justice Shah asked the parties to tell the court whether they can decide the date together or not.
He added that ‘only the court can tell who has given the date.’
Meanwhile, Chief Justice Bandyal remarked: “No constitutional body except the court can extend the period fixed for elections.”
He said that Article 254 exempts delay in elections and can be invoked in case of natural calamities or war.
The Chief Justice remarked that stability will not come if the elections are not held on time.
‘Unconstitutional’
After the hearing resumed, Naik told the bench that he had consulted the PPP leadership, and they had told them that it was not the job of political parties to release election dates.
Muslim League (N) lawyer Awan said that the coalition parties including PPP and Muslim League (N) will have to consult on this issue. He requested the court to continue the proceedings and asked for more time.
Resuming his arguments, Naik said President Alvi announced the election date without consulting Prime Minister Shehbaz Sharif, which is “unconstitutional”.
He did not even consult the Election Commission.
