ISLAMABAD: The nine-member bench of the Supreme Court hearing the suo motu case taken on the delay in the election date announcements for Punjab and Khyber-Pakhtunkhwa (KP) assemblies on Monday disbanded after four of its members dissociated themselves from the bench.
The nine-member bench headed by CJP Bandial and comprising Justice Ijazul Ahsen, Justice Syed Mansoor Ali Shah, Justice, Munib Akhtar, Justice Yahya Afridi, Justice Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Athar Minallh was scheduled to resume on Monday -- third hearing of the suo moto case regarding announcement of date for holding elections for Punjab and KP provincial assemblies.
The bench, however, disbanded after four its members -- Justice Ijazul Ahsen, Justice Mazahar Ali Akbar Naqvi, Justice Yahya Afridi and Justice Athar Minallah dissociated themselves from the bench and consequently the remaining five-member bench headed by the CJP resumed the hearing after reconstitution.
The hearing was delayed reportedly due to the formation of new bench. During the hearing, the chief justice said that four members have dissociated themselves from hearing, adding that now the bench will hear the suo motu case.
The court will continue the hearing for interpretation of the Constitution, Justice Bandial remarked, adding that the court will try to conclude the hearing today (Tuesday). Similarly, the CJP expressed concern over Justice Jamal Khan Mandokhail’s dissenting note being shared on social media prematurely, and thought that its highly inappropriate.
The chief justice observed that until the order is published on the official website of the apex court, it cannot be shared. “But we will be careful in future so that it is not repeated,” he remarked.
He asked Ali Zafar, counsel for two provincial assemblies speakers, to assist if the court can hear this case or not. “We want to conclude the suo motu case as early as possible,” the CJP added.
Arguing before the court, Barrister Ali Zafar submitted that the ECP had asked the Punjab governor to give date for election but the governor replied that he could not as he did not dissolve the assembly.
“Under the Constitution, election has to be held in 90 days after the dissolution of assembly,” Ali Zafar submitted, adding that the constitutional office-bearer cannot delay the election after 90 days.
He contended that the tenure of 90 days had commenced from January 14. At this, Justice Muhammad Ali Mazhar observed that the Punjab governor has thrown the ball in ECP’s court.
“Who appoints the governor,” Justice Mazhar asked the counsel. Ali Zafar replied that governor is appointed with the approval of President of Pakistan.
Justice Mazhar observed that there was a difference between dissolution of assembly by governor and expiry of constitutional requirement. “But the court could give direction to the governor and ECP for the date of holding elections,” Ali Zafar contended, adding that the Election Commission was constitutionally bound to hold and ensure fair elections.
He submitted that the Lahore High Court had held that that electoral process begins before election and ends after that, adding that on the direction of high court the meeting between the ECP and Punjab governor remained inconclusive.
“After that the president after analysing the situation himself gave the date for election of Punjab and KP assembly,” Ali Zafar submitted. Justice Bandial asked the counsel as to whether the ECP had replied to first letter of the president.
“As per my knowledge, the ECP did not,” Ali Zafar replied. Justice Mansoor Ali Shah, however, observed that president’s letter was contrary to high court order as it had asked the ECP to give date for election after consulting the governor, while president asked the commission to give date for polls.
Justice Mazhar observed that the ECP in its reply itself had stated that consultation with governor was not mentioned in the Constitution. “If nothing is mentioned in the Constitution regarding consultation with governor, then the ECP should have given the date for elections,” Justice Mazhar remarked.
Whether the ECP is saying that the decision regarding consultation was a hurdle, Justice Mazhar asked and further questioned if the ECP gives date for election will it be contempt of court?
These are all delaying tactics and giving date by the ECP is a constitutional process, Ali Zafar said. The question in suo motu case is as to who will give date for the elections, Justice Jamal Khan Mandokhail observed.
“Somebody has to announce the date foe elections, Barrister Zafar said, adding that elections could not be delayed for 10 years. The other party should tell as to who will give the date, he submitted.
At the outset of hearing, Justice Munib Akhtar asked the counsel about the situation in the KP. Ali Zafar replied that the governor had dissolved the assembly in the province and asked the ECP to hold consultations with the stakeholders.
He submitted that the KP governor has made the security a basis in his letter for delaying polls, adding that with regard to the election date, the KP governor did not give the date as well.
The counsel for ECP submitted before the court that three constitutional petitions were pending before the Peshawar High Court (PHC). Chief Justice Badial, however, asked as to why had the high court given a 21-day notice to the parties. He observed that a legal point has to be decide, adding that it’s not a civil suit that so much time was given.
Ali Zafar interrupted and submitted that the KP assembly was dissolved on January 18. At this the CJP asked as to what progress had been made on the elections in the province. Barrister Ali Zafar said that under the Election Act, the president has authority to give date for elections.
“You mean that if Constitution is silent on some issue we should depend on Parliament’s wisdom that Section 57(1) of Election Act has given authority to the president to give date after consultation with the ECP,” the chief justice observed.
Justice Jamal Khan Mandokhail asked that whether the governor could suggest holding consultations citing terrorism.
“In my opinion the KP governor did not have the authority to write such a letter”, Ali Zafar contended. The CJP recalled that the case was particularly based only on the question as to who had the authority to give the election date.
He observed that the reason should be stated if the circumstances were not suitable for holding elections. While Justice Mazhar observed that that the election date could not be announced even after a month since the dissolution of the assembly.
Justice Mandokhail asked as to whether the matter pertaining to the law and order can become a hindrance on the constitutional requirement of holding elections. The CJP recalled that the assemblies in 2013 and 2018 had completed their terms.
Meanwhile, the ECP DG (legal) told the court that the president announces the date of elections if the assembly completes its term. Justice Munib Akhtar remarked that the chief minister’s advice was implemented in KP but not in Punjab.
Ali Zafar contended that if there were no assemblies then there was no other way of governance in the Constitution, therefore, a 90-day limit has been set for the elections. The Punjab KP speakers’ counsel stressed that the elections must be held within the 90-day period.
Chief Justice Bandial observed that the ECP was under constitutional obligation to conduct, free, fair and transparent elections.
Ali Zafar submitted that under the Constitution the ECP was required to make arrangement for holding elections, adding the electoral body was constitutionally bound to conduct national, provincial and local polls as well.
He contended that the ECP was responsible to hold elections under Article 218, 219, and 222, and all the executive institutions are bound to assist the commission in conducting elections in the country.
Justice Mansoor Ali Shah asked if there was a war on polling day or an earthquake came, what will happen then, adding that suppose if the governor give dates for polls then natural calamity could also come.
The judge further asked as to if there was a war and curfew imposed then how elections could be held.
Ali Zafar replied that natural calamity is mentioned in the law but war is not mentioned, adding that the ECP could postpone elections in the specific polling stations in case of natural calamity.
Justice Munib Akhtar observed that during 1976 the Constitution was silent as to who will give the date for elections but later on after Parliament made an amendment, the president and governor had been empowered to give the date.
“With regard to Punjab, the president may have correctly given the date for the election”, Justice Akhtar remarked. Justice Mansoor Ali Shah asked the counsel as to whether the ECP itself could give the date for election if the governor refused to give.
Ali Zafar submitted that ECP is a constitutional body hence it should have the powers to do. Justice Munib questioned as to whether there was any provision in the law where it had been clarified that election could not be postponed whatever may happen?
The ECP DG (legal) submitted that Section 58 of Election Act 2017 states that election could be postponed in unfavorable circumstances. To a court query, Ali Zafar submitted that it was the ECP duty to hold elections, adding that if the governor refused to give date then the President would give the date for holding elections.
Justice Mandokhail asked the counsel as to if the ECP was ready to hold election but no resources were available for the electoral exercise then what will happen.
“It does not mean that elections will not be held for 10 years,” Ali Zafar replied after concluding his arguments. “Cricket matches are being played across the country but elections could not be held,” Justice Munib Akhtar remarked.
“How it happens that election could not be held on the basis of lack of resources,” he questioned. Meanwhile, Attorney General Shahzad Ata Elahi told the court that it was not possible to hold election on the date given by the president, adding that as per law the Election Commission needs 52 days for the task of holding elections.
The AG further submitted that it was not possible for holding elections before April 25. Meanwhile, the court adjourned the hearing for today (Tuesday) at 9:30am.
The Islamabad High Court Bar Association president and representative of Supreme Court Bar Association would present their arguments. Pakistan Democratic Movement counsel Farooq H Naek told the court that he would give short arguments. Similarly, the principal secretary to the president told the court that Advocate Salman Akram Raja would represent the president.
