The Supreme Courtroom will announce on Wednesday (at the moment) a verdict within the suo motu proceedings relating to the delay within the announcement of a date for elections in Punjab and Khyber Pakhtunkhwa, each of which have been underneath caretaker governments because the provincial assemblies have been dissolved in January.
The decision is predicted to be introduced at 11am.
The apex court docket’s resolution will settle, as soon as and for all, which constitutional functionary — the president, governor, or the Election Fee of Pakistan (ECP) — ought to announce the election date in case the provincial assemblies are dissolved.
The judges listening to the case are Chief Justice of Pakistan Umar Ata Bandial, Justice Mansoor Ali Shah, Justice Munib Akhtar, Justice Jamal Khan Mandokhail, and Justice Muhammad Ali Mazhar.
After a day-long hearing on Tuesday, the bench closed proceedings at about 5:15pm for a brief order, however then determined to order the decision till at the moment.
The court docket additionally requested political events to seek the advice of their leaderships throughout a brief break and are available again with a consensus date for the elections, however PML-N counsel Mansoor Usman Awan informed the court docket that session will take extra time because the PDM coalition additionally has members in Balochistan, whereas the PML-N may even have to carry inside discussions in addition to seek the advice of the PPP.
Legal professional Basic for Pakistan Shehzad Ata Elahi contended that the ability to repair the election date was vested within the ECP and if the fee had some proof of any issue in holding the elections, it shouldn’t draw back from revealing the identical. Justice Munib Akhtar noticed that it appeared that the ECP was unaware of its constitutional duty to repair the election date and at the moment they stand enlightened of their constitutional obligation.
The CJP pointed in the direction of senior counsel Farooq H. Naek — who was representing PPP — and noticed that no one was doubting the bona fide of the federal government since they’ve causes like terrorism or financial circumstances, which the nation was going through for the primary time, however “we must always at the very least resolve which authority will announce the date to conduct elections within the provinces of Punjab and Khyber Pakhtunkhwa (KP)”.
The CJP emphasised that Article 254, which legalises any failure to adjust to sure necessities inside a stipulated interval, didn’t give licence to anyone to beat the constitutional obligation of holding the elections inside 90 days because the elections must be held even in eventualities like warfare or different calamities.
If the regulation is silent, nonetheless neither the manager authority nor parliament or any constitutional physique has the ability to exceed the time restrict of 90 days of holding the elections aside from the court docket, however then the court docket needed to be happy with the overriding challenges in the way in which of conducting free and honest elections, the CJP noticed.
Naek argued that the PPP didn’t need the postponement of elections unnecessarily, however somewhat wish to take part within the polls supplied they have been held in accordance with the regulation in conducive circumstances. Nevertheless, the present financial disaster makes it a troublesome chance, he added.
He stated April 9 election date fastened by President Arif Alvi with out session with the prime minister was a nullity within the regulation and added the discretion, which the president might train, was implicit within the structure.
Concerning the suo motu proceedings underneath Article 184(3), the counsel reminded {that a} related case was pending earlier than the Lahore Excessive Courtroom (LHC) which had even given a course to the Punjab governor to announce the date in session with the ECP.
In KP, the governor has the authority to announce the date for the elections however for Punjab, the statute was silent and subsequently ECP needed to announce the date, Naek argued. It was not the mandate of the political events to repair a date for the elections, he added.
Justice Shah asks parties to ‘evolve consensus’
Justice Syed Mansoor Ali Shah observed that the solution will come provided the interest of Pakistan is made the central point. He asked the parties to sit together to evolve a consensus.
PTI leader Fawad Chaudhry pleaded before the court that the issue should not be given into the hands of the executive, since the issue would get out of control if the 90-day period was not adhered to.
The CJP regretted that Peshawar High Court (PHC) took three weeks in issuing notice to respondents whereas the LHC held two hearings and adjourned the matter.
On the contrary, the apex court started regular proceedings on Monday and is set to announce the verdict today. “We have accommodated this case because it concerns the enforcement of the Constitution,” he stressed. Farooq Naek however pleaded that the apex court should have issued directions to the high courts to wrap up the case as early as possible.
When Justice Bandial said the court rarely initiates suo motu cases, the counsel commented that the judicial activism started in 2007 was now turning into judicial restraint. “Nobody seems bothered despite the fact that the assembly was dissolved on Jan 14,” observed Justice Mandokhail.
Salman Akram Raja, the president’s counsel, argued that the president accepts that in the case of KP, he had no role in giving the date. The president is very concerned about his constitutional role and all he had done was follow the spirit of the Constitution but he was being attacked in the media for allegedly violating Article 6 (treason), the counsel regretted.
He added that even the cabinet had written a letter to the president stating that he had done something wrong that falls within the purview of Article The counsel said that the president had waited for the judgment of the high court and even invited the ECP. But when the commission refused to engage, then the president consulted his aides who advised him to play his constitutional role. The 90-day limit has to be taken seriously, the counsel argued.
Justice Mazhar wondered would the president wait for a couple of years if the PM did not render any advice to give a certain election date.
Suo motu notice
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.
Punjab, KP election limbo
The Punjab and KP assemblies — where the PTI had governments — were dissolved on January 14 and January 18, respectively, in an try to pave the way in which for snap polls.
On Jan 24, the ECP wrote letters to the principal secretaries of Punjab and KP governors, suggesting elections in Punjab between April 9 and 13, and in KP between April 15 and 17.
On the identical time, the PTI had on Jan 27 approached the LHC in search of orders for the Punjab governor to right away announce a date for an election within the province following which the court docket had directed the ECP to right away announce the date for elections after session with the governor.
In the meantime, President Arif Alvi had additionally urged the ECP on Feb 8 to “instantly announce” the date for polls in KP and Punjab and put an finish to “harmful speculative propaganda” on each the provincial meeting and normal elections.
Nevertheless, thus far, the governors of the 2 provinces have refrained from offering any date for the polls on a number of pretexts.
On Feb 17, President Alvi had invited Chief Election Commissioner (CEC) Sikandar Sultan Raja for an pressing assembly relating to consultations on election dates however the ECP informed him he had no role within the announcement of dates for normal elections to provincial assemblies and the fee was conscious of its constitutional obligation on this regard.
Subsequently, the president on Monday unilaterally introduced April 9 because the date for holding normal elections for the Punjab and KP assemblies.
The transfer drew sharp criticism from his political opponents, who accused him of performing like a PTI employee whereas the ECP stated it might announce the ballot schedule solely after the “competent authority” fixes the date.
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