The Supreme Court on Tuesday resumed hearing its suo motu proceedings regarding the delay in the elections in Punjab and Khyber Pakhtunkhwa.
Chief Justice of Pakistan (CJP) Umar Ata Bandial had yesterday split a larger bench into a five-member bench to conduct suo motu proceedings. He also indicated that they would like to conclude the matter by today.
The Supreme Court also issued a written order, which was dictated in the open court on Feb 23 when Justice Jamal Khan Mandokhail objected to the initiation of the proceedings under Article 184(3).
Signed by nine judges, the written order of the bench stated that keeping in view the Feb 23 order, the additional notes attached by four judges, the CJP’s direction to add questions raised by Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Jamal Khan Mandokhail and Justice Athar Minallah, as well as discussions/deliberations made in the anteroom of the apex court, the matter was referred back to the top judge.
In response, the CJP reconstituted the bench comprising himself, Justice Shah, Justice Munib Akhtar, Justice Mandokhail, and Justice Muhammad Ali Mazhar.
Those who dissociated themselves from the hearing include Justice Ijazul Ahsan, Justice Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Minallah.
Today’s hearing
At the outset of the hearing, Attorney General for Pakistan (AGP) Barrister Shehzad Ata Elahi said that he was ready to present his arguments.
He objected that the name of Islamabad High Court Bar Council President Abid Zuberi was removed from the apex court’s previous order. “The Supreme Court identifies the bar association as an institution.”
CJP Bandial said: “What is presented in court is not a court order. When the judges sign it, that is when it becomes a decree.”
Subsequently, Zuberi started presenting his arguments.
At one point during the hearing, Justice Mandokhail wondered if the governors and president were bound by the advice of the cabinet in the matter. “Can they give the date for elections on their own?”
Here, the top judge observed that the governor was not bound by anyone’s advice on the appointment of the caretaker government and the date for elections.
“Where there is a discretionary authority, there is no need for advice,” Justice Mazhar also remarked.
The CJP then asked: “Who can issue the notification for the dissolution of assemblies?”
Zuberi replied that the notification of the Punjab Assembly’s dissolution was issued by the law secretary.
At that, the AGP interjected, saying that Zuberi was the petitioner’s lawyer and could not represent the bar council. However, Zuberi contended that he was the lawyer of the IHC bar and not of any political party.
“SC had declared in the past that elections are to be held within 90 days,” the IHC bar lawyer said, continuing his arguments.
Meanwhile, Justice Mandokhail maintained that under Article 48 of the Constitution, every act and action of the president was bound to be on the recommendation of the government.
“Will the current government or the previous government call for the announcement of the elections?” he asked.
“This means that the announcement of the date for elections will be on advice,” the chief justice then observed.
“But the governor has the right to dissolve the assemblies,” Zuberi argued, explaining that there were four ways of dissolving assemblies in the Constitution.
“Who will issue the notification for the dissolution of assemblies,” the CJP reiterated.
Zuberi replied that the governor had to issue the notification on the advice of the chief minister. “If the governor does not sign [on the CM’s advice], then the assembly automatically dissolves within 48 hours.”
The lawyer went on to say that in this case, the notification for the dissolution was issued by the law secretary and not the governor.
Here, Justice Akhtar said that the caretaker government is formed seven days after the dissolution. He also stated that there needed to be harmony among the different clauses of the Constitution.
Justice Mandokhail noted that the government could still ask the governor for elections today as per the Constitution.
“How can the governor refuse if advice [on the date of elections] comes from the government,” Justice Shah said.
Meanwhile, Justice Mazhar stated: “The primary question is also that the governor is saying he did not dissolve the assembly.”
Zuberi contended that the mention of the announcement of the date for elections was only in Article 105(3) of the Constitution — which states that the governor shall act on and in accordance with the advice of the chief minister.
Justice Mandokhail remarked that there was no restriction on the government regarding the announcement of the date for polls.
“But the government hasn’t announced the date for so long,” Zuberi pointed out.
Here, the CJP asked: “Are you trying to say that the government is not fulfilling its Constitutional responsibility?
“Holding elections within 90 days [of the dissolution] is in the spirit of the Constitution,” he maintained, adding that the bench will ask the AGP to assist the court on this matter.
On the other hand, Zuberi continued that if the assembly breaks under the pressure of time, then the president was supposed to give the election date. “I am of the opinion that giving the date for elections is the authority of the president of the country.”
Last hearing
At the outset of the hearing on Monday, Justice Bandial observed that four judges graciously disassociated themselves from the bench to avoid wasting time on trivial matters, so that the case could proceed strictly in accordance with the Constitution.
The CJP also regretted that scurrilous allegations have been hurled, but two members said they would not sit on the bench whereas two judges expressed their opinion on the maintainability of the case. About Justice Mandokhail’s note, the CJP regretted that the note was forwarded before the court order was signed and uploaded on the website.
In his additional note, Justice Shah mentioned the controversy in the public domain generated by the audio leaks relating to one of the members of the bench and, despite requests from within and outside the court, he noted there had been no institutional response to the allegations by this court or by the constitutional forum of the Supreme Judicial Council (SJC). Furthermore, there is news of references being filed against the member before SJC by the bar councils.
During the hearing, Justice Shah questioned if the ECP was bound to conduct polls on the date announced by the governor or if it could delay elections. To this, Zafar replied that there was no room for delay in the Constitution.
Meanwhile, Attorney General of Pakistan (AGP) Shehzad Ata Elahi said the Supreme Court should also consider Article 254 of the Constitution, to which Justice Mandokhail said the article would apply when any work was done with a delay.
“First, have the intention to work,” he told the AGP, to which the latter responded that elections were not possible on the date given by the president, adding that the ECP required 52 days according to the law.
“In any case, elections are not possible before April 25,” Elahi added.
Justice Mandokhail pointed out that the Supreme Court Bar elections were held on time in 2005 despite the earthquake.
Coalition seeks full court for suo motu case
On Saturday, the coalition government had petitioned the Supreme Court for the formation of a full court — comprising all judges except Justice Ahsan and Justice Naqvi — to conduct the suo motu proceedings.
The joint petition, filed by senior counsel Farooq H. Naek, Mansoor Usman Awan and Kamran Murtaza on behalf of the PPPP, PML-N and JUI-F, respectively, says the prayer has been made “in the best interest of justice and to strengthen the people’s confidence in the Supreme Court”.
It is imperative that the full court — minus the two judges, who have already disclosed their minds in the matter — be constituted to hear the case in the interest of justice and fairness, contends the petition, which has been moved under Order 33 Rule 6 of the Supreme Court Rules 1980.
The petition argued that when the case was taken up by the nine-judge bench headed by CJP Bandial on Feb 23, Justice Mandokhail read out a note and raised objections to the effect that since the two-member bench consisting of Justice Ahsan and Justice Naqvi had already rendered a definite opinion on the issue as recorded in the court’s Feb 16 order, it would amount to a violation of Article 10A if they remain part of the larger bench.
Justice Mandokhail, the ruling parties recalled, had further stated that it was not appropriate to refer the matter to the CJP under Article 184(3) and that the suo motu action taken by the latter was not justified. Later, the Supreme Court on the same date issued notices to the relevant stakeholders and that the applicants appeared before the court on Feb 24 through their counsel and read a joint statement, seeking the recusal of Justice Ahsan and Justice Naqvi from any matter involving the PPPP, PML-N and JUI-Pakistan and their leadership.
According to the petition, these circumstances have raised several questions of immense legal, constitutional and public importance as recorded in the CJP’s note while invoking suo motu jurisdiction.
Suo motu notice
Last week, the top judge took suo motu notice of the delay in holding polls in Punjab and Khyber Pakhtunkhwa, saying that there appeared to be a “lack of clarity” on the matter.
In the notice, CJP Bandial said that the SC bench would consider the following questions:
- Who has the constitutional responsibility and authority for appointing the date for the holding of a general election to a provincial assembly, upon its dissolution in the various situations envisaged by and under the Constitution?
- How and when is this constitutional responsibility to be discharged?
- What are the constitutional responsibilities and duties of the federation and the province with regard to the holding of the general election?
In his order, the CJP observed that there was, to put it shortly, a lack of clarity on a matter of high constitutional importance.
In his order, the CJP observed that there was, to put it shortly, a lack of clarity on a matter of high constitutional importance.
The issues raised require immediate consideration and resolution by the Supreme Court. The decision was taken after a note was presented to the CJP against the backdrop of a Feb 16 order by a two-judge bench asking the chief justice to invoke a suo motu initiative in this regard.
“Several provisions of the Constitution need to be considered, as also the relevant sections of the Elections Act 2017. In particular, the issues involve, prima facie, a consideration of Article 17 of the Constitution and enforcement of the fundamental right of political parties and the citizens who form the electorates in Punjab and Khyber Pakhtunkhwa to exercise their right to elect representatives of their choice to constitute fresh assemblies and the provincial cabinets,” the SC order said.
“This is necessary for governments in the two provinces to be carried on in accordance with the Constitution,” observed the CJP, adding that these matters involve the performance of constitutional obligations of great public importance apart from calling for faithful constitutional enforcement.
“There is a material development in the last few days,” the CJP noted, adding that it appeared that subsequent to certain correspondence initiated by President Arif Alvi with the Election Commission of Pakistan, the former had taken the position that it was he who had the authority and responsibility for appointing a date for the general elections, in terms as provided in Section 57(1) of the Elections Act.
The order said: “By an order made on Feb 20, the President had appointed April 9, 2023, to be the date for the holding of the general elections in Punjab as well as KP and had called upon ECP to fulfil its constitutional and statutory obligations in this regard.
More than one month has now elapsed since the dissolution of the provincial assemblies and it seems prima facie that even the matter of appointing the date of general elections which was a first step towards the holding of the elections, has still not been resolved, the judge remarked.
“Constitutional authorities appear to hold divergent and perhaps even conflicting, views on the issue, and thus several federal ministers appear to have contested the authority asserted by the president. Since ministers act under the constitutional rule of collective responsibility, it appears, prima facie, that this is the view taken by the federal cabinet as a whole.
“It is also to be noted that statements attributed to ECP have appeared in the public record to the effect that it was not being provided the requisite assistance and support, in particular by the provision of necessary funds, personnel and security, as would enable it to hold the general elections in accordance with the Constitution.”
The CJP observed that in the cases of Punjab and KP, the then chief ministers tendered advice to their respective governors under Article 112(1) of the Constitution to dissolve the assembly.
Punjab, KP election limbo
The Punjab and KP assemblies — where the PTI had governments — were dissolved on January 14 and January 18, respectively, in an attempt to pave the way for snap polls.
On Jan 24, the ECP wrote letters to the principal secretaries of Punjab and KP governors, suggesting elections in Punjab between April 9 and 13, and in KP between April 15 and 17.
At the same time, the PTI had on Jan 27 approached the LHC seeking orders for the Punjab governor to immediately announce a date for an election in the province following which the court had directed the ECP to immediately announce the date for elections after consultation with the governor.
Meanwhile, President Arif Alvi had also urged the ECP on Feb 8 to “immediately announce” the date for polls in KP and Punjab and put an end to “dangerous speculative propaganda” on both the provincial assembly and general elections.
However, so far, the governors of the two provinces have refrained from providing any date for the polls on several pretexts.
On Feb 17, President Alvi had invited Chief Election Commissioner (CEC) Sikandar Sultan Raja for an urgent meeting regarding consultations on election dates but the ECP told him he had no role in the announcement of dates for general elections to provincial assemblies and the commission was aware of its constitutional obligation in this regard.
