All eyes on SC as suo motu ruling due today

ISLAMABAD: The Supreme Court of Pakistan will announce its verdict on the suo motu notice taken over the election date of Khyber Pakhtunkhwa (KP) and Punjab assemblies today (Wednesday).

The court, after hearing the matter in a nine-hour-long proceeding on Tuesday, reserved the verdict after hearing all the parties in detail.

When counsel for all the parties concluded their arguments, Chief Justice Umer Ata Bandial announced, “I thank all the learned counsel for all the parties for their valuable assistance provided to the court throughout the hearings of the instant case,” but added that he cannot say when they will be back to announce the verdict.

Later, the CJP’s secretary informed the media the court will announce the decision today (Wednesday) at 11:30 am.

Headed by the CJP, the larger bench includes Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Jamal Khan Mandokhel and Justice Muhammad Ali Mazhar. “The Constitution does not allow the system’s paralysis,” the Chief Justice remarked.

At the start of the hearing, the CJP urged the political parties, including Pakistan Tehreek-e-Insaf (PTI) and those in Pakistan Democratic Movement (PDM), to evolve a consensus on fulfilling a constitutional obligation on the date for elections to the two provincial assemblies of Punjab and Khyber Pakhtunkhwa (KP) in the best interest of the nation.

The CJP said that conducting the election within 90 days of the dissolution of the assembly is the spirit of the Constitution, adding the court is standing for the Constitution, not any party to the issue. PMLN’s counsel Mansoor Awan submitted the court should continue the proceedings as the coalition partners needed more time to consult each other.

During the course of proceedings, the three political parties in PDM, PML-N, PPP and JUI-F, withdrew their plea for the formation of a full court bench after the reconstitution of the bench hearing the case.

Likewise, Attorney General Shehzad Ata Elahi raised an objection to the Supreme Court Bar Association President Abid Zuberi, saying that his name had been removed from the judicial order.

Chief Justice Umer Ata Bnadial, however, observed that the court sees the SCBA as an institution.

Later, commencing his arguments, SCBA President Abid Zuberi, citing a Supreme Court judgment, recalled that the apex court had declared that the elections should be held within 90 days (of the dissolution of an assembly).

Justice Jamal Khan Mandokhel, however, observed that under Article 48 of the Constitution, the functions of the President have been regulated by the advice of the Prime Minister. “Is the President or Governors empowered to announce the date on their own for the elections to the National Assembly and Provincial Assembly,” Justice Mandokhel asked the SCBA President.

The CJP observed the governor was not constitutionally bound to follow anyone’s advice regarding the appointment of a caretaker government or deciding the election date. He asked who would issue the notification for the assembly dissolution. Abid Zuberi replied the notification for the dissolution of the Punjab Assembly had been issued by the law secretary.

To another question, Zuberi submitted that the caretaker setup’s job was to look after the government affairs instead of giving a date for the polls, which is the governor’s prerogative.

Justice Munib Akhtar observed that the caretaker setup is appointed within seven days after the assembly’s dissolution.

Justice Muhammad Ali Mazhar observed a basic question is the governor’s stance that he did not dissolve the assembly. The SCBA president submitted that the process for giving a date for the election is clearly mentioned in Article 105(3) of the Constitution.

He said holding elections within 90 days of the dissolution of assemblies was mandatory according to the spirit of the Constitution, adding that fixing the date of polls is the President’s prerogative.

He contended the governor was not bound to follow the advice for announcing the date of the election.

Commencing his arguments, Attorney General Shahzad Ata Elahi submitted the President can give a date for the election only in case of the dissolution of the National Assembly.

The AG submitted that the president can give dates for elections when polls are being conducted countrywide.

The AG further submitted that the Election Commission of Pakistan (ECP) would not follow the orders if the government tells it to hold the election a day after the assembly’s dissolution.

The AG, however, contended that as per the Constitution, the elections are held in 90 days and the duration should not be prolonged, adding that the Constitution cannot be interpreted through parliamentary legislation.

“The Constitution is supreme and it doesn’t allow the president to announce a date of the election,” the AG submitted. The CJP, however, observed that the hearing of intra-court appeals in the LHC was adjourned for 14 days.

“Why such an important constitutional issue was being deferred for long periods,” the CJP questioned.

The CJP observed that under the Constitution, the role of the electoral body was very significant in all circumstances.

Sajeel Shahryar Swati, counsel for the Election Commission of Pakistan (ECP), during the course of his arguments submitted before the court that the electoral body is mandated to work in accordance with the Constitution.

He submitted that the Governor was constitutionally bound to give the date for holding elections. He added that the Governor contended how he could give the date for elections when he did not dissolve the provincial assembly of Punjab.

The ECP, however, informed the court that they wrote to the governor to appoint a date for the elections from April 9 to 13.

The CJP observed that ECP is constitutionally mandated to make proper arrangements for holding the polls and asked if the governor is aware of the ECP’s schedule.

Justice Muhammad Ali Mazhar observed that the learned Lahore High Court had directed the governor to hold consultations but instead the governor filed an intra-court appeal.

The ECP lawyer informed the court that they had held a meeting with the governor on the directives issued by the Lahore High Court.

To a court query regarding contacts with Governor KP, the ECP counsel informed the court about their correspondence with him but added that the latter neither gave a date nor held any consultation despite reminders.

Governor Khyber Pakhtunkhwa cited the security situation in the province as the reason and asked the electoral body to contact the agencies in this regard, the ECP counsel submitted.

Similarly, Advocate General KP told the court that the governor would be authorised to decide a date only if he dissolved the assembly, but in KP’s case, the assembly had been dissolved on the chief minister’s advice.

Meanwhile, Farooq H Naek, counsel for PPP while arguing before the court submitted that the President had announced the date for elections without consulting the Prime Minister, which is unconstitutional.

The CJP observed that it was crucial to hold elections within 90 days in the present circumstances.

He further observed that petitions were still pending in Lahore High Court as well as in Peshawar High Court.

“You can realize how we have expedited the suo motu case as we don’t want to leave the constitutional obligation (question) open,” the CJP told Farooq H Naek.

“We are not doubting the bona fide of the government but for the first time we are facing such a situation wherein we have to resolve the matter and ensure constitutional obligation (is fulfilled),” the CJP remarked.

Justice Jamal Khan Mandokhel observed that the provincial assembly was dissolved on January 14, but nobody was taking the constitutional requirement seriously.

“Farooq Sahib did you hear what my learned brother said”, CJP asked Naek in a lighter tone, adding this is the first suo motu taken during the current year just to determine as to who has the constitutional authority to announce the election date.

“And for the sake of clarity who should be responsible in future for announcing the date for elections,” the CJP remarked.

Meanwhile, Farooq H Naek, while praising the apex court, submitted that the post-2007 judicial activism was now turning into judicial restraint.

He stated that giving the date for elections is not the political party's job.

Meanwhile, Salman Akram Raja, counsel for the President, submitted that the President has exercised his constitutional powers under Section 57(1) of the Election Act 2017 by announcing the date for the provincial assemblies of Punjab and Khyber Pakhtunkhwa (KP).

He further submitted that as per the Constitution, the President was not bound to take the advice of the Prime Minister, the cabinet or the chief ministers of the provinces.

After consulting with his legal team, the president carried out his constitutional functions by giving a date for the elections to the two provincial assemblies.

Justice Jamal Khan Mandokhel asked Raja, “In which functions, the President can take advice from the Prime Minister or cabinet.” Salman Akram Raja replied the President can summon the session of the National Assembly on the advice of the Prime Minister.

The counsel submitted that fixing the date for elections, the President can make it without the advice of the PM and cabinet, adding that under Articles 218 and 219, the Election Commission is bound to organise elections and announce the date for the elections as well.

Raja, to a question, however to a question submitted that he had talked to the president to withdraw his notification for the general elections in KP as the province’s governor had dissolved the assembly, unlike Punjab where the governor did not.

Therefore, the president will take back the KP notification.

Salman Akram Raja submitted that the president had summoned the ECP officials for consultation, but the commission had refused.

He contended that the President gave the election date according to the Constitution and law, adding that elections should take place within 90 days by all means.

Sajeel Shahryar Swati, counsel for ECP, however, told the court the announcement of dates for 2013 and 2018 elections were announced by the president on the advice of Prime Minister, adding President Arif Alvi was quite aware of the Lahore High Court order.

Meanwhile, PMLN counsel Awan stated that being a political party, the PML-N does not want a violation of the Constitution, but added that the court should also take into account the process of census being completed by April 30 this year.

Who will publish the report of census, the court asked the counsel to which he replied the federal government. Meanwhile, the Attorney General interrupted and told the court that the Council of Common Interests (CCI) will publish the census.

Justice Munib Akhtar asked the counsel if census were held one week before the elections, whether the elections will be postponed?

After census, the process of delimitation will start, the counsel submitted.

He contended that if the court declares that the Governor will announce the date, then there is no issue.

He further submitted that if the court came to another conclusion, the decision of the high court will stand annulled.

He further submitted that in the present situation, cases were pending in two different high courts.

Both the high courts may give the same decision and nobody may challenge it, Justice Mansoor Ali Shah observed.

The counsel, however, submitted that it is likely that both the high courts will give different verdicts. Kamran Murtaza, counsel for JUI-F, filed written arguments before the court.

Jang correspondent adds: During the hearing, CJP Bandial stated that none of the institutions, other than the court, had the authority to extend the elections further than 90 days.

“And the court can only pass these orders on concrete grounds,” he maintained.

During the course of hearing, Justice Mansoor asked under what law, the president was writing letter (to the election commission). Khalid Iqbal adds: The Islamabad High Court Bar Association (IHCBA) has decided not to pursue a constitutional petition regarding the date of elections in Punjab and Khyber Pakhtunkhwa being heard by the SC.

This was decided in an IHCBA Executive Committee meeting here on Tuesday. The committee said there was no meeting or resolution on record to file the constitutional petition, so the IHCBA expressed complete indifference to this petition. It was decided that the petition would not be pursued. The IHCBA forum would not be used for any political party.