Islamabad: The Supreme Court (SC) of Pakistan has ordered the Election Commission of Pakistan (ECP) to hold elections in Punjab and Khyber Pakhtunkhwa within 90 days. The Supreme Court (SC) announced a split verdict of 3-2 after the completion of the hearing on the suo moto notice on Tuesday.
CJP Justice Umar Ata Bandial, Justice Munib Akhtar and Justice Muhammad Ali Mazhar supported the verdict, while Justice Jamal Mandokhail and Justice Mansoor Ali Shah opposed the admissibility of the suo moto notice and dissented from the majority verdict.
Justice Mansoor Ali Shah and Justice Mandokhail in their dissenting notes agreed with the position of Justice Yahya Afridi and Justice Athar Minallah. The matter was already being heard in the high courts, Supreme Court cannot take suo moto notice on the undertrial cases in the high courts.
The short verdict stated that the Election Commission of Pakistan failed in discharging its role in the election. The announcement of the election date in KP is the responsibility of the provincial governor, while the president has the authority as per law and constitution to fix the election date in Punjab.
The verdict said the announcement of the election in KP by the president was not right, while he enjoys the right to announce the election date in Punjab, as the provincial assembly was dissolved after 48 hours as the governor refused to agree on CM's advise.
The verdict further stated a consultation to fix the date of elections in Punjab, if they are not possible on April 9, the date announced by the president. Article 254 of the constitution will be enforced if the elections are not held within the stipulated time, the verdict said.
Detailed verdict: The SC had taken the suo motu notice of an apparent delay in the elections of Punjab and Khyber Pakhtunkhwa, on February 23, following President Arif Alvi's announcement of the date of polls, a move that drew strong criticism from the government.
Previously, the case was being heard by the nine-member bench but it split on Monday into a five-judge bench after four judges; Justice Ijazul Ahsan, Justice Syed Mazahar Ali Akbar Naqvi, Justice Syed Mansoor Ali Shah and Justice Athar Minallah, recused themselves from hearing the case.
A five-member bench headed by Chief Justice Umar Ata Bandial and comprising Justice Munib Akhtar, Justice Muhammad Ali Mazhar, Justice Shah and Justice Mandokhail heard the case. Chief Justice of Pakistan (CJP) Umar Ata Bandial acknowledged the lawyers for assisting the court on the matter.
Earlier, the court gave PTI and the coalition government until 4pm to sit together and come up with election dates in Khyber Pakhtunkhwa and Punjab. However, a mutually agreed-upon date was not found.
Tuesday's hearing: At the outset of the hearing, Attorney General for Pakistan (AGP) Barrister Shehzad Ata Elahi raised an objection on the Supreme Court Bar Association President Abid Zuberi, saying that his name had been removed from the judicial order.
What is written in the court is not part of a judicial order, CJP Bandial remarked. At one point during the hearing, Justice Mandokhail asked if the governors and president were bound to take advice from the cabinet in the matter. Can they announce the date for polls on their own? he questioned.
Presidents and governors were bound to follow the Cabinet's advice as per the Constitution, he remarked. Can the president or governors give the election date on their own, he inquired. President is bound to consult with the Election Commission of Pakistan (ECP) on election dates, Zuberi argued.
At this, Justice Mansoor Ali Shah said: President can only take decisions as head of State. Here, 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 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. At this Justice Mazhar said the governor will give the date keeping in mind the decisions of the Election Commission.
Can the President take any decision without the advice of the Cabinet?” Justice Shah asked. Here, the CJP Bandial then asked who the governor must consult for announcing poll dates. Zuberi stated that the consultation could only be done with the ECP.
The CJP questioned if the SCBA president was claiming that the incumbent government was not fulfilling its constitutional responsibility. If the Election Commission shows an incapacity to conduct elections, is the governor still bound to give the date, Justice Shah questioned. Zuberi replied that the governor was bound to give the date in every case.
At one point, Justice Mazhar said that if president could not announce the date for elections then what is the need for Section 57(1)?, adding that the law should then be struck out. In your opinion who should announce the election date as per Constitution? The CJP inquired attorney general. Only ECP can announce the election date, the AGP replied.
President could only announce the date for elections when the National Assembly was dissolved. In the second situation, the president can only give the date when general elections are being held, the AGP told the court. The AGP continued giving arguments and said, The Constitution is supreme and it doesn't allow the president to announce a date of election.
Lahore High Court had clearly stated that conducting the elections and announcing a date is ECP's role. At this, Justice Akhtar said that the ECP has to decide a date for the election and the governor has to announce it.
After the AGP concluded his arguments, ECP lawyer Sujeel Shehryar Swati presented his arguments and maintained that only ECP could announce the date of by-elections, The Election Commission operates according to the Constitution and the law, Swati said and added according to the Constitution, the governor should provide the date of the provincial elections.
Monday's hearing: In the last hearing, Justice Ijazul Ahsan, Justice Mazahar Ali Naqvi, Justice Athar Minallah and Justice Yahya Afridi dissociated themselves from hearing the case. The chief justice said that four members of the bench have shown grace and disassociated themselves from hearing. The remaining bench, however, will continue hearing the case, he added.
He noted that Justice Mandokhail's dissenting note was shared on social media before the written order was released. We will be careful that this does not happen in the future, said the CJP. During the hearing, CJP Bandial pointed out that the parliament has clearly written in the Elections Act, 2017, that the president can announce the date for polls.
President announces date: It is pertinent to mention here that President Dr Arif Alvi announced April 9 as the date for holding general elections for Punjab and Khyber Pakhtunkhwa (KP) assemblies. The announced the date under section 57(2) of the constitution.
In a letter written to Chief Election Commissioner (CEC) Sultan Sikandar Raja president Arif Alvi said the constitution does not allow to exceed 90 days for holding elections after the dissolution of assemblies and he has taken the oath to defend and protect the constitution.
The letter stated that ECP and governor KP and Punjab are not fulfilling their duties to hold elections within 90 days and the president has announced an election date to avoid violation of the constitution.
He said that both the constitutional offices are placing the ball in each other's court, which is resulting in delay and creating a serious danger to the constitution. President Arif Alvi said that it is ECP's responsibility to hold the election in 90 days and he started the process of serious consultation on the election date.
It is pertinent to mention here that the Punjab and KP assemblies were dissolved on Jan 18 and Jan 14, respectively, after former prime minister Imran Khan had announced to dissolve assemblies in an attempt to force the government to hold snap polls. As per the Constitution of Pakistan, polls need to be held for the dissolved assemblies in 90 days.