Justice Mansoor Ali Shah of the Supreme Court asked on Tuesday that President Arif Alvi decided the date of the elections under what authority?
The distinguished judge made these remarks when the Supreme Court resumed the hearing of automatic notices related to elections in Khyber Pakhtunkhwa and Punjab.
A five-member bench headed by Chief Justice Umar Atta Bandial comprising Justice Muneeb Akhtar, Justice Muhammad Ali Mazhar, Justice Shah and Justice Mandukhel is hearing the case.
At the beginning of the hearing, the Attorney General of Pakistan told the court that he was ready to give 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: 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, Zuberi said that in this case, the 12-member bench had made the electoral 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.
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.
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.
‘Holding polls within 90 days is 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:Â 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.
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 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 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 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.
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.
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.
Suo motu noticeÂ
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.
A nine-judge bench was constituted to hear the case but the bench was reconstituted after four judges of the bench recused themselves.
Among the judges who resigned themselves are Justice Ijazul Ahsan, Justice Syed Mazahir Ali Akbar Naqvi, Justice Athar Minullah and Justice Yahya Afridi.
The written order was also released on the website of the Supreme Court, which included the dissenting notes of Justice Afridi, Justice Minullah, Justice Jamal Khan Mandukhel and Justice Syed Mansoor Ali Shah.
In the previous hearing, Chief Justice Umar Atta Bandyal said that the Parliament has clearly written in the Elections Act 2017 that the President can announce the date of the elections.
Chief Justice Bandyal had said that the hearing will be concluded today.
