The Supreme Courtroom on Tuesday resumed listening to its suo motu proceedings concerning the delay within the elections in Punjab and Khyber Pakhtunkhwa.
Chief Justice of Pakistan (CJP) Umar Ata Bandial had yesterday cut up a bigger bench right into a five-member bench to conduct suo motu proceedings. He additionally indicated that they wish to conclude the matter by in the present day.
A nine-judge bench — visibly polarised at its first listening to — was scheduled to start the listening to at 11:30am on Monday, however proceedings finally resumed at 1:30pm after the reconstitution of the bench.
The Supreme Courtroom additionally issued a written order, which was dictated within the open court docket on Feb 23 when Justice Jamal Khan Mandokhail objected to the initiation of the proceedings beneath Article 184(3). The CJP additionally hinted that they wish to conclude the matter by in the present day and closed Monday’s proceedings round 5:25pm.
Signed by 9 judges, the written order of the bench said that conserving in view the Feb 23 order, the additional notes hooked up by 4 judges, the CJP’s route so as to add questions raised by Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Jamal Khan Mandokhail and Justice Athar Minallah, in addition to discussions/deliberations made within the anteroom of the apex court docket, the matter was referred again to the highest decide.
In response, the CJP reconstituted the bench comprising himself, Justice Shah, Justice Munib Akhtar, Justice Mandokhail, and Justice Muhammad Ali Mazhar. Those that dissociated themselves from the listening to embrace Justice Ijazul Ahsan, Justice Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Minallah.
Today’s hearing
At the outset of the hearing, Attorney General for Pakistan (AGP) Barrister Shehzad Ata Elahi said that he was ready to present his arguments.
He objected that the name of Islamabad High Court Bar Council President Abid Zuberi 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 point, the AGP interjected, saying that Zuberi was the petitioner’s lawyer and could not represent the bar council. However, Zuberi contended that he was the lawyer of the IHC bar and not of any political party.
“SC had declared in the past that elections are to be held within 90 days,” the IHC bar lawyer said, continuing his arguments.
Meanwhile, Justice Mandokhail maintained that the “president takes every step on the advice of the government” and the governor did the same — by following the advice of the provincial setup.
Last hearing
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.
Coalition seeks full court for suo motu case
On Saturday, the coalition government had petitioned the Supreme Courtroom 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 very best curiosity of justice and to strengthen the individuals’s confidence within the Supreme Courtroom”.
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 beneath Order 33 Rule 6 of the Supreme Courtroom Guidelines 1980.
The petition argued that when the case was taken up by the nine-judge bench headed by CJP Bandial on Feb 23, Justice Mandokhail learn out a notice 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 problem as recorded within the court docket’s Feb 16 order, it will 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 said that it was not applicable to refer the matter to the CJP beneath Article 184(3) and that the suo motu motion taken by the latter was not justified. Later, the Supreme Courtroom 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, looking for the recusal of Justice Ahsan and Justice Naqvi from any matter involving the PPPP, PML-N and JUI-Pakistan and their management.
In line with the petition, these circumstances have raised a number of questions of immense authorized, constitutional and public significance as recorded within the CJP’s notice 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 and 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 identical time, the PTI had on Jan 27 approached the LHC looking for 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.
Nonetheless, to date, 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 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 performing like a PTI employee whereas the ECP mentioned it will announce the ballot schedule solely after the “competent authority” fixes the date.
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