ISLAMABAD: The Supreme Court directed on Tuesday the concerned political parties to hold a consultation on deciding a date for the elections in Punjab and Khyber Pakhtunkhwa, and inform the court by 4pm today.
The directive was passed during the hearing of a suo motu notice taken by the apex court on an apparent delay in elections in the two provinces after the assemblies dissolution, in order to ascertain who had the authority to decide the polls date.
The SC directed Pakistan Tehreek-e-Insaf leaders Shireen Mazari and Fawad Chaudhry to consult with party chairman, Imran Khan, and coalition partners’ lawyers to consult with their leaders and update the court by 4pm.
The directive came after the three ruling parties withdrew the plea they had filed for the formation of a full court to hear the suo motu taken up by the Supreme Court on the Punjab and Khyber Pakhutnkhwa elections.
Pakistan Peoples Party (PPP), Pakistan Muslim League-Nawaz (PML-N) and Jamiat Ulema-e-Islam-Fazl (JUI-F) had jointly filed a plea via Usman Awan, Farooq H Naek, and Kamran Murtaza, respectively, two days after the SC took suo motu notice.
The plea was withdrawn today when the five-member bench headed by Chief Justice Umar Ata Bandial and comprising Justice Munib Akhtar, Justice Muhammad Ali Mazhar, Justice Shah and Justice Mandokhail resumed hearing of the case today.
Naek, while withdrawing the plea said that the coalition partners have jointly decided not to pursue the plea seeking a full court after the reconstitution of the bench.
At the outset of the hearing, attorney general for Pakistan informed the court that he was ready to give arguments.
He also raised an objection on the Supreme Court Bar Association President Abid Zuberi, saying that his name had been removed from the judicial order.
At this, CJP Bandial said that the court sees the SCBA as an institution.
“What is written in the court is not part of a judicial order. It becomes an order when the judges sign it,” he remarked.
After this, Zuberi started his arguments.
“Supreme Court has declared it in the past that the elections should be held in 90 days,” Zuberi stated.
At this, Justice Mandokhail remarked that the presidents and governors were bound to follow the Cabinet’s advice as per the Constitution.
“Can the president or governors give the election date on their own,” he inquired.
Meanwhile, CJP Bandial remarked that the governor wasn’t constitutionally bound to follow anyone’s advice regarding the appointment of a caretaker government or deciding the election date.
While, Justice Mazhar added that “no one’s advice is needed where there is discretion.”
Moving on, the CJP asked that who would issue the notification for the assembly dissolution.
Responding to the question, Zuberi said that the notification for the dissolution of Punjab Assembly had been issued by the law secretary.
At this point, Justice Akhtar remarked that the 90-day period starts right after the assembly has been dissolved.
Meanwhile, Justice Shah inquired if the caretaker chief minister could advise the governor on the election date.
To this, Zuberi said that the caretaker setup and the election date is announced simultaneously.
Justice Shah asked whether the governor could reject the caretaker government’s advice?
At this, Zuberi replied that the caretaker setup’s job was to look after government affairs instead of giving a date for the polls, which is the governor’s prerogative.
While referring to the Saifullah case, Zuberi said that the 12-member bench in that case had declared the election process a must.
At this, Justice Mandokhail remarked that Article 48 of the Constitution states that every act and step taken by the president would be on the government’s advice.
CJP Bandial seconded Justice Mandokhail’s remark, saying that the deciding a date for the polls would be based on the advice under Article 48.
While, Justice Akhtar remarked that the caretaker setup is appointed after seven days of the assembly’s dissolution.
“Harmony among different clauses of the Constitution is necessary,” he added.
Meanwhile, Justice Mazhar remarked that in Punjab’s case, the ministry of law had issued the notification, not the governor.
Justice Mandokhail said that the government can still tell the governor to conduct elections, as per the Constitution.
Justice Shah wondered how could the governor refuse to conduct elections if he receives the government’s advice regarding the poll date.
Moving on, Zuberi stated that the caretaker setup was established in Punjab on January 22.
“A basic question is that the governor is saying that he didn’t dissolve the assembly,” Justice Mazhar remarked.
Zuberi shared that as per Article 105(3) mentions the process of giving an election date.
Justice Mandokhail said that the government is not bound to give a date for polls.
Zuberi then complained that the date for the polls was not been announced even after so many days.
To this, CJP Bandial asked Zuberi if he was arguing that the government wasn’t fulfilling its constitutional duty.
“Holding elections within 90 days is the spirit of Constitution,” he observed, adding that the court would ask the AGP to assist it on the legal points.
Meanwhile, Zuberi contended that the president would announce a date for the polls if the duration of the assembly ends.
“I contend that fixing the date of polls is the prerogative of the president,” he added.
At this, Justice Mazhar remarked that a 52-day margin would be kept whenever the governor gives the date.
Meanwhile, Justice Mandokhail remarked: “President’s powers have not been stated directly by the Constitution.”
“The action will be taken as per the law if the Constitution doesn’t have the powers,” he said, adding that the laws are based on the Constitution.
Meanwhile, Justice Shah inquired under which law the president was “writing the letters”.
At this, Zuberi said that the president had written the letters for consultations.
To this, the judge replied that the Constitution does not state anywhere about holding consultations.
“If we assume that the law allows the president, even then he is bound to [follow] the advice,” Justice Mandokhail remarked.
Meanwhile, Justice Shah said that the caretaker government can also ask for deciding a date.
At this, CJP Bandial remarked that the court would decide if the president needed consultation or not, after hearing the other parties in the case.
Zuberi argued that the governor wasn’t bound to follow the advice for announcing the date of election. The same authority as the governor has been given to the president, he added.
“The president either is not bound to [follow] the advice,” Zuberi said while wrapping up his arguments.
Justice Shah remarked that the governor was bound to follow if he was advised to decide an election date.
Elections should be held in 90 days: AGP
After this, the AGP Shehzad Ata Elahi started his arguments.
“The president can give a date for the election only in case of the dissolution of National Assembly,” he said. He added that the other scenario on which the president can give date for elections is when polls are being conducted countrywide.
At this, CJP Bandial remarked that the president’s powers to make a decision at discretion and on advice had a difference.
AGP Elahi then argued that that the ECP wouldn’t follow the orders if the governor tells it to hold the election a day after the assembly’s dissolution.
At this, Justice Akhtar remarked that the governor had to keep the Election Act in view as well.
The AGP remarked that the elections should be held in 90 days and the duration shouldn’t be prolonged.
Justice Shah asked if the ECP could delay the election if the date is announced by the governor.
At this, the AGP replied that the electoral body can ask for holding elections in 89 days if the governor orders conducting election on the 85th day after the dissolution of assembly.
On this, CJP Bandial remarked that it was the reason that the governor has been bound to hold consultation with the ECP.
“Whether it is the president or the governor, everyone is bound by the Constitution and law,” he said
To this, Justice Mazhar suggested holding consultation between the governor and ECP and give a date tomorrow.
At this point, the court adjourned the hearing for half an hour.
When the hearing reconvened, the AGP continued his arguments and said that the Constitution cannot be interpreted through the parliamentary legislation.
“The Constitution is supreme and it doesn’t allow the president to announce a date of election,” he added.
He said that the Lahore High Court had clearly said that conducting the elections and announcing a date for it was ECP’s authority.
He further stated that the elections was a “subject” for the Centre.
At this, Justice Akhtar said that the ECP has to decide a date for the election and the governor has to announce it.
Justice Mandokhail interjected and wondered if everything was clear then what was the fight about?
Meanwhile, CJP Bandial observed that the hearing of intra-court appeals in the LHC was being adjourned for 14 days. He asked why was such an important constitutional issue was being deferred for long periods.
Moreover, the CJP also inquired under which clause of the Constitution, the ECP has been given the power to decide the poll date.
On this, Justice Mazhar said that the ECP’s authority starts after the announcement of election date, as per the Constitution.
The CJP then remarked that the president had some democratic and some non-democratic powers over the date.
At this, Justice Mazhar asked why don’t they abolish Section 57 if the president is not authorised to give the election date. He asked if anyone had challenged Section 57 for being contradictory to the Constitution.
The judge also asked for the AGP’s opinion that who had the authority to give the date.
ECP has authority to give election date: AGP
Responding to the query, AGP Elahi said that the ECP had the authority to give date for the election.
In response to AGP’s comment, Justice Mandokhail said that no consultation was needed if the ECP had to announce the date.
However, Justice Akhtar asked that where would the governor and president’s role go if that was the case.
“Is the president’s role of a news caster that he makes the announcement,” he said, adding that the ECP should use its website if it was just about making an announcement.
At this, the CJP remarked that ECP’s role is important under any circumstances.
“According to you president’s role is central while the other side says it is consultative,” CJP Bandial said while addressing Justice Akhtar.
On this, Justice Akhtar asked if the duration for the election campaign could be shortened.
Responding to the question, ECP’s lawyer maintained that printing process of the ballot papers required time. He, however, said that the duration of election campaign can be shortened up to two weeks.
Justice Akhtar remarked that implementing the constitution was more important.
On this point, AGP Elahi contended that wouldn’t the 1988’s election become controversial if elections have to be conducted in 90 days.
He said that the 2008 polls were also held after the designated period.
At this, CJP reminded the AGP that in 2008 there was a big tragedy. The CJP was referring to the murder of former prime minister Benazir Bhutto.
At this, Justice Mandokhail reiterated the question of who will give the date.
“Had the matter of fixing a date been clarified in the law, we wouldn’t be standing at this point today,” he remarked.
At this, CJP Bandial remarked that the court would apply Article 254 where it is valid.
Justice Mazhar added that ECP had recommended a date to the governor.
On the other hand, Justice Mandokhail inquired whether the caretaker cabinet can send a summary to the governor.
At this, the AGP replied in negation.
While Justice Mazhar asked how long should the president wait if the prime minister does not send him the advice.
On this point Justice Mandokhail remarked that the Parliament could have made a law and given responsibility to someone.
The AGP told the court that if laws are passed today then the Parliament is mocked that it is incomplete. He also reiterated that the ECP should give the date of polls as the 90 days period close to completion.
“If the dictation on the election date has to come from somewhere else then the ECP can refuse to fulfill other responsibilities as well,” he said while completing his arguments.
The AGP completed his arguments on this point and the ECP’s lawyer started presenting the electoral body’s point of view.
The SC had taken the suo motu notice of an apparent delay in the elections of the two assemblies, on February 23, following President Arif Alvi’s announcement of date of polls, a move that drew strong criticism from the government
As per the CJP, the suo motu notice had been taken to assess who was eligible to issue the date for polls and who had the constitutional responsibility of conducting elections and when.
A nine-member bench was constituted to hear the case but the bench was reconstituted after four judges of the bench recused themselves.
The judges that recused themselves were Justice Ijaz Ul Ahsan, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Athar Minallah and Justice Yahya Afridi.
A written order was also issued on the SC’s website in which dissenting notes of Justice Afridi, Justice Minallah, Justice Jamal Khan Mandokhail and Justice Syed Mansoor Ali Shah had been included.
In the previous hearing, Chief Justice Umar Ata Bandial said that the parliament has clearly written in the Elections Act, 2017, that the president can announce the date for polls.
CJP Bandial had said that the hearing will be wrapped up today.
