KP, Punjab elections: Elections Act can not supersede the Structure, observes CJP Bandial – Pakistan

At the outset of the hearing, AGP Elahi said that he was ready to present his arguments.

He objected that the name of the Supreme Court Bar Association’s president 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 a “bar lawyer and not of a political party”.

“SC had declared in the past that elections are to be held within 90 days,” Zuberi 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.”

At one point, Justice Shah asked: “Is the governor still bound to give the election date if the Election Commission of Pakistan shows the incapacity to conduct the polls.”

Zuberi replied that the governor had to give a date, irrespective of the situation.

Justice Mazhar observed that the governor had no authority not to give a date for polls but added that the governor had to give the date keeping in mind the decisions of the electoral body.

Subsequently, Justice Shah asked: “Can the president take a decision without the advice of the cabinet?”

Justice Mandokhail reiterated that the powers of the president were clear in the Constitution. “The president is bound to take advice for everything.”

Here, Zuberi objected. “The president is not obliged to seek advice. He can exercise every power that is given by law. The president and governors are only bound to consult with the ECP on the date of elections,” he stated.

However, Justice Shah stressed that the president, as the head of the state, could only take decisions on advice.

Justice Mandokhail also said that the powers of the president were not directly stated in the Constitution. “If there are no powers in the Constitution, then action will be taken under the law. And the law comes from the Constitution.”

Justice Shah asked: “Under which law is the president writing letters?”

For his part, Zuberi said that the president had sent the letters to the ECP for consultation but the judge contended that the Constitution did not talk about any dialogue.

“Let’s suppose that we believe that the law gives the president permission [to announce the date for elections] … but even then he is bound by the advice,” Justice Mandokhail observed.

“The caretaker government can also ask to give a date,” Justice Shah said.

Here, the CJP said that the court will decide whether the president needs to consult with the government after listening to arguments from the other side.

The attorney general argued that it was a different argument as to who could take the polls ahead of 90 days. To this, Justice Shah asked if the ECP could extend the date of elections given by the governor.

“If the governor asks for election on the 85th day, then the ECP can give the date for the 89th day,” AGP Elahi responded.

At this point, the CJP said: “This is the reason why the governor is bound to consult with the ECP. Whether it is the governor or the president, everyone is bound by the law and Constitution.”

Commencing his arguments in the case, the AGP said that the 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.”

Here, the CJP pointed out that there was a difference between the discretionary and advisory powers of the president.

AGP Elahi also stated that if the governor asked for elections a day after the dissolution of the assembly, the ECP would not agree, adding that elections should be held within 90 days and not extended beyond that.

“The governor also has to take into consideration the Election Act, 2017,” Justice Akhter added.

Subsequently, the hearing was adjourned for half an hour.

When the proceedings resumed, the AGP stated that the ECP was an independent institution and its responsibility was to hold polls.

“The position of the Punjab governor is that the ECP should announce the date for elections itself,” he contended, elaborating that in his intra-court appeal in the Lahore High Court, the governor had said that consultation with him on the matter was not required.

“However, the ECP is of the stance that how can it give a date for elections itself,” the attorney general told the court.

Here, CJP Bandial said: “I don’t understand why a 14-day time was sought from the high court. As the attorney general, you were fully prepared as this case started.

“What were the points for which the lawyer [in the LHC] needed 14 days to prepare? In the high court, the matter should have been fixed for hearing on a daily basis.”

At one point, Justice Mazhar stated that the president had used Section 57(1) of the Election Act, 2017 — which says that the president shall announce the date or dates of the general elections after consultation with the ECP — for the announcement of the date of polls.

“If the president has no power [to announce the election date], then this means that Section 57(1) is ineffective,” he observed, adding that the law should then be struck out.

The AGP said that in his opinion, the electoral watchdog could give the date for elections.

“If the ECP has to announce the date, then there is no need for consultations with anyone,” Justice Mandokhail said.

However, Justice Akhtar said that the purpose of the Constitution and law needed to be understood. “If the ECP has to announce the date for elections, then where is the role of the governor and the president?”

At that, CJP Bandial stressed that the role of the election commission was important in any situation. “According to you, the role of the ECP is final.”

Meanwhile, AGP Elahi contended that the interpretation of the Constitution could not be done in the Parliament, asserting that the “Constitution is supreme”.

“The Constitution does not give the president permission to decide on a date for elections,” he said. “He can only announce the date.”

The LHC, the attorney general continued, had clearly stated that holding elections and deciding their date was the authority of the ECP. “Elections are the subject of the federal [government],” he added.

Justice Mandokhail then said: “What is the point of arguing when everything is clear?”

Separately, the CJP reiterated that intra-court appeals in the LHC were being delayed for 14 days. “Why are such lengthy adjournments being given on important constitutional matters?

“Under which provision of the Constitution does ECP have the right to decide on the date for elections?” the top judge asked.

On the other hand, the AGP said that the president had given the date for elections on Feb 20.

“If the election programme is followed, it is impossible to hold polls within 90 days,” he told the bench, highlighting that in Punjab, the 90-day time will end on April 14.

“Provincial general elections are not possible before April 25,” AGP Elahi added.

“Where there is a will, there is a way,” Justice Akhtar said here.

“If the ECP and concerned authorities wanted, they could have found a solution. According to the law, 28 days are required for the election campaign,” he maintained, adding that the campaigning time could be reduced within the 90-day period.

For his part, the AGP said that time was needed for printing ballot papers, adding that the time for campaigning could be reduced to two weeks.

Justice Akhtar stressed that the implementation of the Constitution was more important. “With the extension of two to four days [in the 90-day period of holding elections] Article 254 may be applied,” he said.

Article 254 of the Constitution states: “When any act or thing is required by the Constitution to be done within a particular period and it is not done within that period, the doing of the act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period.”

However, the AGP asked that if it was compulsory to hold the polls within 90 days, then were the 1988 elections questionable.

“The elections in 2008 were also held after the stipulated period of time,” he pointed out.

To this, Justice Mandokhail said: “The first question is who will give the date for elections. The rest of the things will be discussed after that.

“We wouldn’t be standing here today if the law had been clear on giving the date of elections,” he added.

At one point during the hearing, the apex judge said that the Elections Act, 2017, cannot supersede the Constitution.

The AGP contended that the President’s authority could not be inconsistent with the ECP.

“As the attorney general, you are talking against the Constitution instead of defending it,” Justice Akhtar said.

Justice Mazhar also pointed out that if Section 57(1) was struck off from the Constitution, it would be impossible to hold elections.

“But in the present situation, the ECP should announce the election date,” AGP Elahi said. “The ECP can also say that elections are not possible till April 14.”

The electoral watchdog, he continued, was empowered to take a decision with concrete reasons. “No one has given a date yet, everything is in the air right now.”

Here, Justice Mandokhail said: “Where did the ECP get the authority to delay [elections] beyond 90 days? The entire dispute is about holding the polls within 90 days.”

The attorney general replied that support could be taken from Article 254 on concrete reasons to which Justice Mazhar asked how could Article 254 be invoked without the announcement of the election date.

Meanwhile, the CJP said: “If the law is not clear, how can we say that ECP is at fault?”

The AGP replied that the court could grant permission if the elections are delayed beyond 90 days.

“Do not think that the court will amplify anything that this unconstitutional,” the CJP asserted, stressing that Article 254 will only be used where it can be applied.

Justice Mazhar then said that the ECP had suggested election dates to the governors of KP and Punjab.

Justice Mandokhail asked if the caretaker cabinet could send a summary to the governor to which the AGP replied that both the governor and the cabinet were bound by the Constitution.

“The caretaker cabinet can not send a summary for the election date,” he added.

Justice Mazhar then inquired how long could the president wait if the prime minister does not send advice on a matter.

“Several laws have been formed within hours, they could have formed a law today too and handed over the responsibility,” Justice Mandokhail remarked.

AGP Elahi said that several questions were already being raised on the legislation by the current Parliament. He went on to say that the ECP should give a date for elections.

“The 90-day time is reaching a close … I am not doubting the intention of the ECP, but the electoral body cannot escape from its responsibility,” the attorney general said and concluded his arguments.

Subsequently, ECP lawyer Sajeel Sheryar began presenting his arguments. He said that the electoral watchdog has to work according to the Constitution.

“The ECP can give three types of dates — for the senate elections, presidential elections and by-elections,” he told the court, highlighting that here the matter of polls in only KP and Punjab was under discussion.

“Our stance from the first day is that the date for the elections has to be announced by the governor,” Sheryar said.

Here, the CJP maintained: “The chief minister’s advice to dissolve the assembly has its own effect because even if the governor doesn’t sign [the summary], the assembly would automatically dissolve.”

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.

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.