ISLAMABAD: The Supreme Court of Pakistan on Tuesday reserved its decision on the date of elections of Khyber Pakhtunkhwa (KP) and Punjab on its own notice.
A five-member bench headed by Chief Justice Umar Atta Bandial comprising Justice Muneeb Akhtar, Justice Muhammad Ali Mazhar, Justice Mansoor Ali Shah and Justice Jamal Khan Mandukhel held hearing for two consecutive days from Monday to Tuesday.
“I would like to thank all the lawyers who have assisted us throughout the hearing. I cannot say when we will be back [to announce the verdict],” the chief justice told the parties in the case. said after concluding the arguments. Although the verdict was expected today, the chief justice’s secretary said the verdict would be delivered tomorrow.
Earlier today, the Supreme Court had also asked the political parties – Pakistan Tehreek-e-Insaaf (PTI) and the ruling alliance – to agree on a mutual date for the polls, but they could not reach a consensus. The Pakistan Muslim League-Nawaz (PMLN) counsel asked the court to continue the proceedings as the coalition parties needed more time to consult with each other.
The Supreme Court took 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.
Initially, a nine-member larger bench was formed to hear the case, but the bench was reconstituted after four judges of the bench, Justice Ijaz-ul-Ahsan, Justice Syed Mazahir Ali Akbar Naqvi, Justice Athar Manullah and Justice Yahya Afridi, withdrew. done
Meanwhile, the ruling alliance – Muslim League (N), Pakistan Peoples Party, and Jamiat Ulema Islam (JUI-F) also withdrew their request for constitution of a full court bench after the reconstitution of the bench hearing the case. took
‘Can president or governor give election date on their own?’Â
At the beginning of the hearing today, Attorney General for Pakistan Shahzad Atta Elahi informed the court that he is ready to present arguments.
He also objected to Supreme Court Bar Association President Abid Zuberi and said 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’
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, Zuberi said that the 12-member bench had made the electoral process mandatory in that case.
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 the remarks of Justice Mandukhel and said that the date of elections will be decided on consultation under Article 48. While Justice Akhtar remarked that the caretaker set-up is appointed 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. Justice Shah wondered how the governor could refuse to hold the election if he got the advice of the government regarding the date of the elections.
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 despite the passage of so many days, the date of the elections was not announced.
Conducting elections in 90 days is the spirit of the 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:Â judge
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.
Elections should be held in 90 days: AGP
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 added that another scenario in which the President can give election dates 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.
The AGP replied that if the Governor orders to hold the election on the 85th day after the dissolution of the Assembly, then the electoral body can ask to hold the election 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 give tomorrow’s date after consultation between Governor and ECP.
On this occasion, the court adjourned the hearing of the case for half an hour.
President cannot announce date of elections: 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 this, Justice Mazhar said that if the President does not have the authority to give the date of the 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.
ECP has authority to give election date: AGP
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?
“Does the President have the role of a newscaster to announce,” he said, adding that the ECP should use its website if it was only to announce.
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.
On which Justice Akhtar inquired 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, wouldn’t the 1988 elections 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.
‘Article 254 to be where it is valid’: CJP Bandial
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 give a date for 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’
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 meant that the Governor would give a date to dissolve 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 instead 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 the Governor of KP about 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 ECP to be active in electoral matters.
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 would be authorized to decide the date only if the Assembly was dissolved, but in the case of KP, the Assembly was dissolved on the advice of the Chief Minister.
‘Only court can increase designated period for elections’: CJ
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’s lawyer Mansoor Usman Awan said that the coalition parties, including the People’s Party and the Muslim League-N, will have to consult on this matter. 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.
Justice Akhtar then said that the Assembly has completed its term, so who will advise the President? “Elections must be held within two months after the completion of the term of the Assembly.”
Justice Akhtar said that the President can send the summary back after 14 days, but sending the summary back and forth will waste 25 days.
He further said that the President can also ask the Prime Minister to take a vote of confidence and his advice is not required for that.
Intervening, Naik said the President sent the election date announcement without consulting the Prime Minister and asserted that it was against the Constitution.
Chief Justice Bandyal said that holding elections in 90 days is very necessary in the current situation, adding that the High Courts of Peshawar and Lahore have also delayed the matter.
The Chief Justice remarked that today is the second day in a row that the Supreme Court is hearing suo motu notices and noted that the Supreme Court will not support anything but the Constitution.
Naik told the Chief Justice that the Supreme Court can ask the High Courts to issue cases at the earliest.
Chief Justice Bandyal then told Naik that the Supreme Court was holding hearings to resolve the issue and noted that despite being understaffed, the Supreme Court had disposed of 24 major cases in a year.
Justice Akhtar said that it is the discretion of the President and he can announce the date of the election. He further said that the Supreme Commander should be ready immediately after the end of the assembly period.
‘Judicial activism’
The chief justice then said that the court was not doing anyone a favor and was only following the constitution, while Naik again asked the chief justice to tell the high courts to speed up the process.
The Chief Justice told Naik that it was too late for that and the Supreme Court took suo motu notice to ensure implementation of the Constitution.
When the Assembly dissolved on January 14, no one cared. Sir Farooq Naik, did you hear the count? Mr. Farooq Naik, you are also right that courts should not interfere in political matters.”
The chief justice also told Naik that in the last two years, the Supreme Court has taken very few — two to be exact — notices of its own. “In the current year, this is the first self-notice we have taken and we are trying to determine who has the constitutional authority to announce the election date.”
Naik then told the bench that as per Supreme Court rules, whenever a petitioner approaches the Supreme Court, they have to inform the Supreme Court whether their issues are pending in other courts or not.
“PTI has not told the Supreme Court in its constitutional petition that their cases are pending in the High Courts. I want to say something and then I will conclude my arguments: Judicial activism that started in 2007 is now judicial. It’s turning into patience.”
KP governor’s ‘right’
During the hearing, President Alvi’s lawyer Salman Akram Raja said his client had decided to withdraw his notification for general elections in Khyber Pakhtunkhwa because the governor of the province had dissolved the assembly – unlike in Punjab, where the governor Didn’t do that.
“The President has said that it is the governor’s right to issue the election date,” Raja said, to which Justice Mazhar asked why he had not withdrawn the advice yet.
“He will take it back soon,” replied the Rajah.
Raja admitted that the President overstepped his constitutional powers and had no right to announce the date of elections in KP.
“So is the president guilty of contempt of court?” Justice Shah asked, to which Raja said no, he is not a party to the pending cases in the High Courts.
The lawyer added that the President had called the ECP officials for consultation but the commission refused.
He further said that President Alvi gave the date of election according to the constitution and law. “Elections should be held within 90 days anyway.”
Raja also maintained that the court has jurisdiction to take suo motu notice and hear petitions.
He informed the court that the President is being threatened with action under Article 6. “The Cabinet has warned the President of taking action against him under Article 6.”
To which Justice Mandukhel replied: “They do not apply Article 6 where it [actually] applies.”
Raja insisted that no one is obeying the President’s order, hence he is supporting the court action.
