KP, Punjab polls: Reconstituted SC bench debates governor, president’s roles after 4 judges dissociate themselves – Pakistan
The authority and position of governor and president had been among the many Constitutional factors contemplated upon as a reconstituted five-member Supreme Court docket bench heard the suo motu proceedings concerning the delay within the announcement of a date for elections in Punjab and Khyber Pakhtunkhwa.
The resizing of the bench to 5 from its unique dimension of 9 was an surprising growth earlier than the court docket proceedings started immediately.
The unique bench included:
- Chief Justice of Pakistan (CJP) Umar Ata Bandial
- Justice Ijazul Ahsan
- Justice Syed Mansoor Ali Shah
- Justice Munib Akhtar
- Justice Yahya Afridi
- Justice Sayyed Mazahar Ali Akbar Naqvi
- Justice Jamal Khan Mandokhail
- Justice Muhammad Ali Mazhar
- Justice Athar Minallah
In its order on Feb 23, all of the 9 judges despatched the matter to the CJP as soon as once more, asking for the reconstitution of the bench in gentle of the extra notes authored by Justice Mandokhail, Justice Shah, Justice Afridi and Justice Minallah. All 4 of the judges who wrote the extra notes had objected to the structure of the bench on a number of grounds.
Two of those judges had additionally questioned the SC’s jurisdiction to invoke Article 184(3), which pertains to its suo motu powers, on this matter.
Learn: Suo motu: Key points from the 4 dissenting SC judges
CJP Bandial, Justice Shah, Justice Mandokhail, Justice Akhtar and Justice Mazhar heard the case immediately.
Justice Ahsan and Justice Naqvi — whose inclusion to the unique bench was opposed by the coalition authorities and the Pakistan Bar Council — in addition to Justice Minallah and Justice Afridi have distanced themselves from the bench. “These 4 judges have proven grace and stepped away from the bench,” stated the chief justice on the outset of the listening to.
Division within the bench had additionally emerged within the very first listening to after Justice Mandokhail, who is an element of the present bench, objected to the suo motu discover itself as “unjustified”. The choose had additionally talked about audio recordings that purportedly featured fellow choose — Justice Sayyed Mazahar Ali Akbar Naqvi.
The reconstituted bench started listening to the case round 1:30pm immediately after two delays in its scheduled timings of 11:30am and 12:30pm.
‘What Constitution says depends on its interpretation’
As the proceedings commenced today, CJP Bandial said that four members of the bench have disassociated themselves from the bench. “The remaining bench, however, will continue hearing the case.
“We will continue the hearing for the interpretation of the Constitution because what the Constitution says depends on its interpretation,” he stated.
The apex judge went on to say that the court will again hear the suo motu case at 9:30am tomorrow (Tuesday) and try to wrap it up.
CJP Bandial also pointed out that the note of Justice Mandokhail had emerged on social media even before the verdict was released. “We will take precautions so that such an incident does not recur in the future.”
‘High court orders violated’
As the hearing proceeded, Barrister Ali Zafar informed the court that the Punjab governor had sought names from both parties regarding the caretaker chief minister. “But because there was a disagreement between the parties involved, the ECP decided on the name of the CM.”
The ECP, he continued, wrote a letter to the governor but the latter declined to propose a date for the election on the grounds that he had not dissolved the assembly.
“According to the Constitution, it is compulsory to hold elections within 90 days [of the dissolution of the assemblies] and no constitutional representative can delay the polls further than this,” the lawyer stressed.
Here, Justice Mazhar remarked that the governor had “thrown the matter” into the ECP court. “Who appoints the governor?” he asked.
Barrister Zafar responded that a governor was appointed with the consent of the president.
“There is a difference between a governor dissolving an assembly and an automatic dissolution of the assembly after the completion of its term,” Justice Mazhar said.
At that, Barrister Zafar said the court could either order the governor or the ECP to announce the date for elections, highlighting that the meeting between the governor and the ECP team that was held on the directions of the court had ended inconclusively.
The president unilaterally announced the election date while analysing the whole situation, the lawyer told the court.
For his part, former Punjab Assembly speaker’s counsel said that holding elections was the responsibility of the electoral body.
Referring to the Lahore High Court’s Feb 10 order of holding elections in Punjab, Barrister Zafar said that the ECP also did not comply with the court’s orders.
“Was the option for the contempt used?” Justice Mansoor Ali Shah asked here.
The lawyer replied that a contempt plea was filed on Feb 14. “The ECP was subsequently asked to furnish a reply on the petition,” he added.
Zafar further said that the president had written two letters on the matter. The first letter written on Feb 8 contained a direction to the ECP to announce a date for the election, he told the court.
“According to the governor, the date for elections will be given by the election commission or another authority,” the lawyer pointed out, adding that he had been instructed to discuss the matter with the governor with respect to security and economic situation.
At that, Justice Mazhar said that the order was not mandatory. “To put it briefly, the governor has refused to give a date for elections.
“The ECP has responded to the [president’s] letter. The ball is in your court now. You have to decide now,” the judge remarked.
Meanwhile, Justice Shah asked: “What happened after that?”
Barrister Zafar replied that nothing has happened since after the president announced the date of elections.
Subsequently, the court asked about the status of PTI’s writ petitions filed in the court against the KP and Punjab governors.
In his response, the lawyer explained that even in that case, it was said that the date for elections could only be decided after discussion with the governor. At the same time, Barrister Zafar contended that the ECP was bound to hold polls under Articles 108 and 109 of the Constitution.
“But the ECP said that no outcome came out of the meeting [with the governors],” he added.
“This means the court orders were violated,” the court asked. “Were the minutes of these meetings released in the media?”
Zafar said that the details of the meeting were published by a newspaper.
‘Who will give date for elections’
At one point during the hearing, CJP Bandial asked if the ECP had responded to the first letter of the president to which Zafar replied in the negative.
Here, Justice Shah remarked that the president’s letter was contrary to the high court’s order.
“The court had sought a date for elections after consultations with the governor. The president asked the ECP to give a date,” he observed.
Justice Mazhar pointed out that the electoral body had written in its letter that consultation with the governor was not in the Constitution. “If consultations can’t be held, then the comission should have given a date itself.”
At that, Justice Shah maintained: “As far as my understanding goes, the ECP is saying that the Constitution does not included consultations over the elections date.
But the high court asked it to consult with the governor.“
Justice Mazhar asked if the ECP was trying to say that the LHC order was “coming in its way”. “If the ECP gives a date itself, will it be contempt of court,” he inquired.
However, Barrister Zafar argued that “all these are delaying tactics”, stressing that it was ECP’s constitutional duty to give a date for elections.
At that point, Justice Mandokhail stated: “The question in the suo motu case is that who will give the date for elections.”
Barrister Zafar said that someone or the other had to announce the date for polls. “It is not possible that the ECP delays the case for 10 years. Let whoever they want announce the date.”
The lawyer went on to say that the situation in KP was different. “The governor there has signed the dissolution of the assembly but is not announcing the date of elections.”
For his part, the ECP lawyer said that the next hearing of the case in the Peshawar High Court (PHC) was scheduled for tomorrow (Tuesday).
“The PHC gave a total of 21 days for the submission of the responses,” the CJP noted, adding that “this is a pure constitutional questions”.
Here, the Advocate General stated that the KP governor had maintained that there was a 90-day time to announce the election date.
“If 90 days are taken to decide the date, when will the elections be held?” Justice Mazhar asked.
The court subsequently directed the secretary of the KP governor to submit a response in the court today.
Meanwhile, the CJP said: “This is straight case. On Jan18, the governor failed to give a date for elections.”
The ECP lawyer argued that three constitutional petitions were pending in the PHC.
“Why did the PHC give a 21-day notice to the respondents?” the apex judge asked. “There is a legal point that is to be settled here. It is not a civil case that has been given so much time.”
He also inquired about the progress of elections in KP.
Justice Akhtar also asked about the position of the KP Assembly to which Barrister Zafar said that the governor of KP had written a letter to the ECP seeking consultation with stakeholders regarding holding polls due to the security situation.
Here, the hearing was adjourned till 4pm.
Once the hearing’s resumed, Justice Shah asked who issues the notification of the assembly’s dissolution, to which Barrister Ali Zafar replied that the Election Commission of Pakistan had issued the dissolution notice.
Justice Mandokhail wondered whether or not the ECP could issue the dissolution notification.
Meanwhile, Justice Akhtar remarked: “According to the notification, the [Punjab] Assembly automatically [stood] dissolved after 48 hours.”
At one point, the role of governor was debated upon. Justice Shah said that the governor’s role in parliamentary democracy was like that of a “post office” and questioned whether the matter of the assembly’s dissolution was his discretion.
Justice Akhtar remarked that the governor had the discretion to approve or send back a summary, but not to dissolve the assembly. “If the governor does not approve the summary, the assembly will automatically dissolve,” he said.
To this, Justice Shah said that whether or not the assembly would be dissolved was not the governor’s decision to make.
Justice Akhtar said that “even if the governor sends the summary back, the 48-hour [deadline] period still stands.”
Barrister Zafar said that in his opinion the governor cannot send back the dissolution summary. Justice Shah again concurred to this point.
Meanwhile, CJP Bandial noted that “the governor does not need any summary for [announcing] the election date or caretaker government.”
Justice Shah questioned whether the governor could automatically dissolve the assembly under “Article 112-3” of the Constitution. He said that there were two situations mentioned in the aforementioned article: “whether the governor approves the dissolution or not”.
He said that according to the article’s first subclause, the governor had the discretion to dissolve the assembly or not. “Now tell us whether the governor has the discretion or is his role mechanical?” the judge asked addressing the barrister.
Justice Shah also asked what would happen if war broke out or there was an earthquake on the election day. “Natural calamities can happen even if the governor gives the date of elections. If there is a war or a curfew, how will the elections be held?” he asked.
Barrister Zafar answered that the law mentioned floods and natural disasters but not wars. “The election commission can postpone polling at certain polling stations. There is no mention of a war in the law, so only an emergency can be imposed [in such a situation],” he replied.
Meanwhile, the chief justice noted that the ECP had asked the high court for staff — a request that was refused by the court. “This is an organisational matter.”
On the other hand, Justice Akhtar asked if there was any provision that said elections could not be postponed no matter what the situation was in the country.
The ECP director general replied that according to Section 58 of the Elections Act, elections could be postponed under “unforeseen circumstances”.
Later in the hearing, Justice Shah remarked that the president would have to step where the “governor fails”.
However, Justice Akhtar remarked that a situation where the governor dissolved the assembly based on the advice sent to him but did not give the election date did not mean that the president can issue the date instead. “You will have to go to the court in such a situation,” he told Barrister Zafar.
“In some cases, if the Constitution is silent, the parliament is an elected body. In 1976, this authority was with the election commission and the Constitution was silent regarding the governor. Then, the parliament intervened and decided that the president will have the authority,” the judge recalled.
At this, Justice Shah remarked that in all three scenarios, the right to give the election date would be the governor’s.
“Are you saying that if the governor does not give the date, then the Election Commission should step up and give the date?” Justice Shah asked Barrister Zafar, to which he replied that it was the commission’s responsibility to “carry out elections”.
“If it’s the governor who dissolves the assembly, then the date will also be given by the governor,” the PTI counsel said.
“[In case the governor does not issue a date], the election commission will act,” CJP Bandial remarked here, to which Zafar contended that in such a case the president will have the authority to issue the election date.
Elections not possible before April 25, ECP tells SC
Justice Shah questioned if the ECP was bound to conduct poll 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.
Meanwhile, Justice Mandokhail asked what would happen if the ECP agreed to carry out elections but did not have the resources to do so. At this, Zafar said, “That does not mean that there will be no elections for ten years.”
At one point, Justice Akhtar wondered how the country’s situation was good enough for cricket matches but “[somehow] elections cannot happen”.
He questioned how elections could be postponed on the basis financial constraints.
Barrister Zafar pointed out that the ECP had suggested potential dates to the KP and Punjab governors. At this, Justice Mazhar said the body should always be ready for elections since “any assembly could be dissolved at any time.”
“If the governor announces the election in a week, what will the election commission do then? All the work of the elections has to be done by the election commission,” Justice Shah remarked.
At another point in the hearing, Justice Shah remarked that “isn’t it strange that the president gives the date after consultation but the governor by his own will?”
“Surely, there must be someone whom the governor consults,” the chief justice remarked.
At the conclusion of Barrister Zafar’s arguments, the hearing was adjourned till 9:30am tomorrow (Tuesday).
Coalition seeks full court for suo motu case
On Saturday, the coalition government petitioned the Supreme Court docket for the formation of a full court docket — comprising all judges besides Justice Ahsan and Justice Naqvi — to conduct the suo motu proceedings.
The joint petition, filed by senior counsel Farooq H. Naek, Mansoor Usman Awan and Kamran Murtaza on behalf of the PPPP, PML-N and JUI-F, respectively, says the prayer has been made “in the perfect curiosity of justice and to strengthen the individuals’s confidence within the Supreme Court docket”.
It’s crucial that the complete court docket — minus the 2 judges, who’ve already disclosed their minds within the matter — be constituted to listen to the case within the curiosity of justice and equity, contends the petition, which has been moved below Order 33 Rule 6 of the Supreme Court docket Guidelines 1980.
The petition argued that when the case was taken up by the nine-judge bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial on Feb 23, Justice Jamal Khan Mandokhail learn out a word and raised objections to the impact that because the two-member bench consisting of Justice Ahsan and Justice Naqvi had already rendered a particular opinion on the difficulty as recorded within the court docket’s Feb 16 order, it might quantity to a violation of Article 10A if they continue to be a part of the bigger bench.
Justice Mandokhail, the ruling events recalled, had additional acknowledged that it was not acceptable to refer the matter to the CJP below Article 184(3) and that the suo motu motion taken by the latter was not justified. Later, the Supreme Court docket on the identical date issued notices to the related stakeholders and that the candidates appeared earlier than the court docket on Feb 24 by way of their counsel and browse a joint assertion, in search of the recusal of Justice Ahsan and Justice Naqvi from any matter involving the PPPP, PML-N and JUI-Pakistan and their management.
Based on the petition, these circumstances have raised a number of questions of immense authorized, constitutional and public significance as recorded within the CJP’s word whereas invoking suo motu jurisdiction.
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 best way 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 similar time, the PTI had on Jan 27 approached the LHC in search of orders for the Punjab governor to instantly announce a date for an election within the province following which the court docket had directed the ECP to instantly 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, to this point, the governors of the 2 provinces have refrained from offering any date for the polls on a number of pretexts.
Final week, President Alvi had invited Chief Election Commissioner (CEC) Sikandar Sultan Raja for an pressing assembly concerning consultations on election dates however the ECP advised 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 appearing 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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