The Supreme Court announced on Wednesday a split verdict on the sou motu notice taken over the delay in the Khyber Pakhtunkhwa (KP) and Punjab assembly polls, directing the authorities to conduct elections in the two provinces within 90 days.
Chief Justice of Pakistan Umar Ata Bandial delivered the verdict reserved by a five-member bench comprising Justice Munib Akhtar, Justice Muhammad Ali Mazhar, Justice Mansoor Ali Shah, and Justice Jamal Khan Mandokhail, a day after almost 10 hours of dramatic proceedings. The proceedings on the suo motu notice had continued for two successive days — from Monday to Tuesday.
The apex court gave the three-two split decision, with the majority of the bench granting relief to the petitioners. Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail objected to the admissibility of the petitions.
The top court had taken suo motu notice of an apparent delay in the elections of the two assemblies, on February 23, following President Arif Alvi's announcement of the date of polls, a move that drew strong criticism from the government.
As per the CJP, the suo motu notice had been taken to ascertain who had the authority to give a date for elections.
Delivering the verdict, the SC stated that the Constitution has given a period of 60-90 days to conduct elections after the dissolution of the assemblies and that the procedure of the general elections is different.
"Elections within 90 days after dissolution of assembly are mandatory," CJP Bandial stated.
The court stated that the KP Assembly had been dissolved after the governor signed the summary, while the Punjab Assembly had been dissolved on its own as the governor didn't sign the summary even after 48 hours.
The SC stated that the Constitution gives powers to the governor to dissolve an assembly under three conditions: under Article 112 or on the advice of the chief minister, Article 222 which says the election is a subject for the Centre and the Election Act 2017 gives the governor and the president the power to announce a date for the polls.
If the governor dissolved the assembly, he would also announce the date, CJP Bandial said.
The court stated that in case the governor doesn't dissolve the assembly, the president then has the power to dissolve the assembly under Section 57 and announce the date of election. However, the SC stressed that the governor had the constitutional responsibility of announcing the date.
The SC directed President Arif Alvi to announce the date of the Punjab election in line with the apex court's order after consulting with the Election Commission of Pakistan (ECP), and directed the KP governor to announce the date for polls in his province.
For the ECP, the SC ordered immediate advice to the president on the date of the election.
"The elections in all the provinces should be held within the constitutional period," the court stated, directing all the federal and provincial bodies to assist the electoral body with the election process.
Moreover, the SC directed the federal government to provide all facilities to the ECP to conduct the elections.
Meanwhile, the SC declared the pleas related to the provincial elections admissible and disposed them.
After announcing the verdict, CJP Bandial said that he would read the dissenting notes of Justice Shah and Justice Mandokhail.
As per the dissenting note, the suo motu case wasn't admissible under Article 184/3, and the SC shouldn't use its authority under the article in such cases. The two opposing judges termed the suo motu proceedings "wholly unjustified in the mode and manner they were taken up under Article 184(3) of the Constitution".
They said that the suo motu notice had been initiated with "undue haste". "We, therefore, agree with the orders dated 23.02.2023 passed by our learned brothers, Yahya Afridi and Athar Minallah [...] and dismiss the present constitution petitions and drop the suo motu proceedings," the dissenting note read.
A nine-member larger bench had initially been constituted to hear the suo motu case but the bench was reconstituted after four judges recused themselves from the hearing on Monday.
The judges who had recused themselves were Justice Ijaz Ul Ahsan, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Athar Minallah and Justice Yahya Afridi.
The Pakistan Tehreek-e-Insaf (PTI) welcomed the SC verdict.
“It’s a unanimous verdict in fact as Justice Mansoor Ali Shah also said that when the Lahore High Court had taken up the matter and ruled that the elections should be held in 90 days so the Supreme Court shouldn’t have taken suo motu notice on it,” a jubilant Fawad Chauhdry said after the SC verdict.
“So he is also agreeing with our stance. And it’s a victory for the Constitution.”
Meanwhile, stopping Awami Muslim League chief Sheikh Rashid from speaking outside the apex court following the verdict, Fawad said that the president has been asked to announce the election in Punjab while the governor is directed to fix the poll date in Khyber Pakhtunkhwa.
The SC, the PTI leader added, has bound the federation to provide all sorts of support with its security or provision of funds.
“Election is the foundation of the state.”
On the other hand, AML Sheikh Rashid congratulated the nation over the verdict and asked the country to “prepare for the elections”.
“It’s a big victory. The Constitution has won, and the people of Pakistan have won.”
He predicted: “Inshallah, PTI is going to form governments in KP and Punjab”.
During yesterday's hearing, the SC also asked the political parties — the Pakistan Tehreek-e-Insaf (PTI) and the ruling alliance — to agree upon a mutual date for the elections, but they could not reach a consensus. Meanwhile, the Pakistan Muslim League-Nawaz's (PML-N) lawyer had asked the court to continue the proceedings before the SC finally reserved its verdict at around 6:30pm.
Meanwhile, President Arif Alvi's lawyer Salman Akram Raja had announced that his client would soon retract his notification for the general elections in KP as the province's governor had dissolved the assembly — unlike Punjab, where the governor did not.
Raja insisted that no one was obeying the president’s order, which was why they were supporting the court’s proceedings.
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