ISLAMABAD: Chief Justice Umar Atta Bandial on Monday said that the Parliament has clearly written in the Elections Act 2017 that the President can announce the date of elections.
After deciding that the governors of Khyber Pakhtunkhwa KP and Punjab – Haji Ghulam Ali and Balighur Rehman – and the Election Commission of Pakistan (ECP) were not fulfilling their constitutional obligations to announce the date of elections in both provinces. , President Arif Alvi announced earlier this month. that elections would be held in April – a move that was heavily criticized by the government.
Meanwhile, the Chief Justice’s remarks came during the hearing of the Spontaneous Notices related to the Khyber Pakhtunkhwa and Punjab elections. The bench, which earlier consisted of nine members, now consists of only five members.
The bench was reconstituted after Justice Ijazul Ahsan, Justice Syed Mazahir Ali Akbar Naqvi, Justice Athar Manullah and Justice Yahya Afridi withdrew from hearing the case.
The hearing of the case was scheduled to begin at 11 am today, but it was delayed due to the formation of the bench in light of the Supreme Court’s order for the February 23 hearing.
The written order was released on the website of the Supreme Court, which included dissenting notes by Justice Afridi, Justice Minullah, Justice Jamal Khan Mandukhel and Justice Syed Mansoor Ali Shah.
After which a five-member bench consisting of Justice Muneeb Akhtar, Justice Muhammad Ali Mazhar, Justice Shah and Justice Mandukhel was formed under the chairmanship of Chief Justice Umar Atta Bandial, which held the hearing today.
The newly constituted bench adjourned the case till 9:30 am tomorrow after Barrister Ali Zafar completed his arguments after the advocates of both the provinces.
The hearingÂ
When the hearing began, Chief Justice Bandial said that four judges had recused themselves from the bench.
The Chief Justice said that the remaining bench of the court will continue to hear the case. He added that the court will continue hearing the case to interpret the constitution.
The Chief Justice also noted that he cannot issue the written order until it is published on the website. He said that Justice Mandukhel’s dissenting note was shared on social media before the written order was issued.
The Chief Justice said that we will be careful that this does not happen in the future.
The court then directed Barrister Ali Zafar, counsel for the Speakers of the Punjab and Khyber Pakhtunkhwa Assemblies, to submit arguments as to whether the court should hear the case or not.
Can the court hear this case or not? The Chief Justice said that in any case the case has to be completed tomorrow.
On this, the lawyer of Pakistan People’s Party (PPP) intervened and said that the ruling parties have filed a request for the establishment of a full court.
The Chief Justice remarked that he will decide after hearing all the applications.
After which, lawyer Zafar, who represented the speakers, started his arguments and said that the Chief Minister of Punjab has sent the summary of dissolution of the assembly to the governor.
Zafar said that the governor was bound to dissolve the assembly but he did not do so and after 48 hours of his refusal, the assembly was automatically dissolved.
‘Who appoints the governor?’
The lawyer said that no constitutional officer can delay the election for more than 90 days. In Punjab, the 90-day period began on January 14.
“Who Appoints the Governor?” Justice Mazhar asked the question.
On this, Zafar said that the governor is appointed after the approval of the president.
On which Justice Mazhar remarked that there is a difference between the dissolution of the assembly by the governor and the dissolution itself after the completion of the constitutional term.
Justice Mandukhel inquired that whose job is to decide the date of elections?
On this, Zafar said that notice has been taken automatically regarding the date of elections.
Justice Mazhar remarked that ‘there is no provision in the constitution which justifies the delay of elections beyond a period of 90 days.
Can the elections be delayed due to anyone? he asked.
On this, Zafar said that no one can delay the elections.
Justice Mazhar said that Governor Punjab threw the ball in the court of Election Commission of Pakistan (ECP).
“Ping-pong is being played on the election date,” Zafar told the bench.
Meanwhile, Justice Shah inquired whether the hearing of the case in the Lahore High Court was adjourned on the request of the parties.
‘Without a solid reason’
On this, Sheikh Rasheed’s lawyer Azhar Siddique told the bench that the hearing of the case in the High Court was adjourned because the matter was pending in the Supreme Court.
While Zafar told the bench that no injunction has been issued by the Lahore High Court on intra-court appeals.
After hearing this, Justice Shah expressed his surprise that after giving the orders to announce the date of election, any petition for contempt of court was filed in Lahore High Court.
On this, Zafar said that a contempt of court application has been filed against the ECP. While Sheikh Rasheed’s lawyer added that the Election Commission has submitted a vague response to the contempt of court petition.
On this occasion, Chief Justice Bandial inquired whether any reason was given for such a long delay in the intra-court appeal in Lahore.
He said that the hearing on such an important matter cannot be postponed for a long time without a solid reason.
Siddiqui told the court that the Election Commission sought time to submit the reply to the Lahore High Court, so the hearing was adjourned.
Zafar told the court that the Election Commission failed to respect the orders of the High Court.
‘Two letters’
Siddiqui said that the contempt petition was filed in the Lahore High Court on February 14 and a reply was sought from the ECP.
“The president wrote two letters on the issue,” Zafar said, adding that the letter – which was sent on February 8 – asked the ECP for a date for the polls.
On this, the Chief Justice inquired whether the ECP had replied to the first letter of President Arif Alvi.
Zafar replied that according to his information, the ECP did not respond to the President’s first letter.
Meanwhile, Justice Shah remarked that the President’s letter is against the order of the High Court.
“The High Court had asked to give the date after consultation with the Governor,” he said, adding that the President had asked the Election Commission to give the date for the polls.
On this, Justice Mazhar said that the ECP has written in his reply that consultation with the Governor is not in the constitution.
He added that ‘if the consultation did not take place, the commission should have given the date itself’.
Zafar said that the ECP says that he cannot give the date of the elections. He further said that the real problem is that no one wants to give the date of elections.
He said that the President has clarified all the facts regarding the date of elections in his letter.
On which Justice Mandukhel questioned whether anyone contacted President Alvi for the date of the election or gave it unilaterally?
Zafar said the president had to intervene because it was a matter of fundamental rights, adding that “someone has to announce the date”.
Zafar said that if the court thinks that the ECP should give the date, it should issue an order.
He further said that if the parties think that the election has been conducted by some other organization, they should also inform the court.
Situation in KP
On this occasion, Justice Akhtar asked about the situation in KP.
On this, Barrister Zafar told the court that the Governor has dissolved the Assembly in KP and asked the ECP to consult the stakeholders.
“The KP Governor has made security the basis in his letter,” he said. He added that as far as the date of elections is concerned, even the KP Governor has not given any date.
Meanwhile, the lawyer representing the ECP told the bench that three constitutional petitions are pending in the Peshawar High Court (PHC).
On this, Chief Justice Bandial inquired why the High Court gave 21 days notice to the parties.
The Chief Justice remarked that a legal point has to be settled, not a civil suit, that so much time has been given.
On this, Zafar intervened and said that the KP Assembly was dissolved on January 18.
Chief Justice Bandial asked what progress has been made regarding the elections in KP.
Meanwhile, Justice Mandukhel asked whether the governor could suggest consultation referring to terrorism.
On this, Zafar told the court that in his opinion Governor KP did not have the authority to write such a letter.
Chief Justice Bandial said that this case is now only based on the question of who has the authority to give the date of election.
Meanwhile, Justice Mansoor remarked that the Election Commission is saying that the option of consultation to fix the election date is not written in the constitution.
On this, Justice Mazhar inquired that if the Election Commission itself gives the date, will it be contempt of court?
Responding to a question, Zafar said that all these were “delay tactics” and that it was constitutional for the Election Commission to set a date for the election.
‘Someone has to announce date’
Justice Mandukhel remarked that the automatic notice has asked who will give the date of the election.
On this, Zafar said that “someone has to announce the date”. He said that it cannot be that the elections are postponed for 10 years, so the other party should tell who can give the date.
Chief Justice Bandial remarked that if the situation is not suitable for elections, then give the reason.
Meanwhile, Justice Mazhar expressed regret that the date of elections could not be announced even a month after the dissolution of the Assembly.
Justice Mazhar said that when the election date is announced, it will be decided whether polling can be held on that date or not. He added that an entire month was wasted only because the governor had asked for a consultation.
Justice Mandukhel highlighted, “Ensuring law and order is the responsibility of the ECP, not the governor.” He inquired whether the matter related to law and order could hinder the constitutional requirement of holding elections.
The Chief Justice reminded that the assemblies have completed their terms in 2013 and 2018.
On the occasion, ECP Director General (DG) Law said that if the Assembly completes its term, the President announces the date of elections.
Meanwhile, Justice Akhtar remarked that the Chief Minister’s advice was implemented in KP but not in Punjab.
Barrister Zafar said that if there are no assemblies, then there is no other way of governance in the constitution, that’s why a limit of 90 days has been set for elections.
He asserted that the elections should be held within a period of 90 days.
Chief Justice Bandial said that the Election Commission’s job is to conduct elections.
Zafar said that the Election Commission is responsible for organizing and conducting elections. “The ECP has to conduct national, provincial and local body elections as per the constitution,” he added.
“The ECP is responsible for conducting elections under Articles 218, 219 and 222 and all administrative bodies are bound to assist the ECP in conducting the elections,” Zafar said.
He said that if the Election Commission shows helplessness, the court should take action.
Later, the Chief Justice adjourned the hearing till 4 pm.
Debate over power
After the break, the hearing resumed, Justice Shah asked who is responsible for issuing the notification of dissolution of the assembly?
“Election Commission issues notification of dissolution of assembly,” Zafar said. On which Justice Mandukhel asked the lawyer whether the Election Commission can issue a dissolution notification.
Justice Shah said that the record shows that the then government had issued a notification to dissolve the assembly.
Justice Mandukhel said that someone must have issued instructions before the notification of dissolution. Justice Shah then asked whether the role of the governor in a parliamentary democracy is limited to the post office.
Can the Governor dissolve the Assembly at his discretion? Justice Shah asked the question. Justice Akhtar said it was the governor’s discretion to send back or sign the summary.
“But the governor has no power to dissolve the assembly. If the governor does not sign the summary of dissolution of the assembly, it is automatically dissolved.”
Justice Shah said that it is the governor’s discretion whether he wants to dissolve the assembly or not.
Justice Akhtar said that no, it does not depend on the discretion of the Governor. He further said that even if the governor sends back the summary, the period of 48 hours continues.
Justice Shah then taunted Barrister Zafar saying: “Ali Sahib, you are saying exactly in every question, do you agree with all the questions?”
Under Article 112 of the Constitution, there are two options – the governor either approves the summary or rejects it, Justice Shah said, adding that the sub-section of the article also notes that it is the governor’s discretion whether he wants to dissolve the assembly. Or not.
“Now tell me, does the governor have authority or is his role merely mechanical?” Justice Shah expressed surprise. In response to which Justice Akhtar said that if the assembly is dissolved 48 hours after the summary is transferred, who issues the notification?
Justice Mazhar then said that the Governor’s discretionary powers cannot be questioned. Justice Mandukhel inquired as to when the 48-hour period starts after the Governor sends back the summary.
In response, Barrister Zafar said that in his opinion, the governor cannot send back the summary of the dissolution of the assembly.
Justice Akhtar said that releasing the election date is a constitutional obligation. He said that in some situations, it is the governor’s job and in others, it is the president’s job.
He added that the Constitution was silent on placing responsibility on any office to call for re-election in 1976.
Justice Akhtar said that I believe that when it comes to Punjab, the President thought it right to release the date of elections. Justice Mandukhel asked that if both the President and the Governor release the date of the election, whose order will be followed?
Barrister Zafar said that if a provincial assembly is dissolved, the governor’s orders will be considered. Justice Akhtar then said that if the governor dissolves the assembly and does not announce the date of the elections, the court can direct the authorities concerned to announce the date.
‘Important issue’
Chief Justice Bandial then asked under what procedure the Governor and the President announce the date of elections. He said that according to the law both should consult the ECP before announcing the date.
“This is an important issue, and we should look into what the President consults with the ECP. We want to know exactly what matters the President consults with the ECP.”
Justice Shah said that if the governor does not announce the date, can the ECP issue the date unilaterally? Barrister Zafar said that the Election Commission is a constitutional body and it should be empowered to issue the date.
Justice Akhtar intervened and said that the Constitution should be very clear on this matter.
Chief Justice Bandial said that the Parliament has clearly written in the Election Act that the President can also issue the date of the election. After that, Justice Mandukhel said that what will happen if there is no money to conduct elections in the country?
Justice Akhtar then said that it is surprising that the country has sufficient funds to host cricket matches, but cannot hold elections.
Barrister Zafar said that the Election Commission has already informed the Supreme Court about the preparations for the election. Justice Mazhar said that preparations will be made as soon as the election date is announced.
Justice Akhtar said that how is it possible that there is no election due to lack of funds.
Barrister Zafar said that the Election Commission has suggested the dates to the governors, adding that the Election Commission should always be ready to hold elections as any assembly can be dissolved at any time.
‘Unrealistic date’
During the hearing, Justice Shah asked when the President has to issue the election date under Article 57 of the Election Act. He also asked about the dates of the elections that could be released by him.
Meanwhile, Justice Bandial said that 90 days after the dissolution of the Assembly will end on April 13.
Barrister Zafar said that the ECP can approach the court if the governor gives an ‘unrealistic date’.
Meanwhile, the ECP counsel said the election authority needs 52 days to ensure completion of all the steps before the elections, including nomination papers.
Justice Shah asked whether the Governor had to issue a date on the day the Assembly was dissolved and whether the ECP could hold elections on dates different from those given by the Governor.
Barrister Zafar said that the elections have to be held on time anyway.
Attorney General Barrister Shahzad Ata Elahi said that the court should also consider Article 254 while Justice Mandukhel said that it will be applied when there is delay in any work.
The Attorney General said that elections are not possible on the date announced by the President and added that elections are not possible before April 25. Justice Akhtar replied that this is a national tragedy.
The Attorney General said that if the election is announced today, the 90-day limit cannot be followed.
“[We] want to finish the case tomorrow,” Chief Justice Bandial said.
The hearing of the automatic notice case was adjourned till 9:30 am tomorrow (Tuesday).
