ISLAMABAD: The Supreme Court (SC) bench on Monday adjourned the hearing of suo motu notice taken on the delay in the election date announcements for Punjab and Khyber-Pakhtunkhwa (KP) assemblies till tomorrow as four judges distanced themselves from the bench, ARY News reported.
Justice Ijazul Ahsan, Justice Mazahar Ali Naqvi, Justice Athar Minallah and Justice Yahya Afridi dissociated themselves from hearing the case.
Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Mansoor Ali Shah, Justice Jamal Khan Mandokhail, Justice Munib Akhtar and Justice Muhammad Ali Mazhar heard the case today.
At the outset of the hearing, 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.
Read More: PUNJAB, KP ELECTIONS: FOUR JUDGES RECUSE FROM HEARING SUO MOTO NOTICE
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.
‘Who appoints the governor?’
During the hearing, Barrister Ali Zafar informed the court that the Punjab governor had declined to propose a date for the election on the grounds that he had not dissolved the assembly.
As per the constitution, the lawyer noted, it is compulsory to hold elections within 90 days of the dissolution of the assemblies and no constitutional representative can delay the polls further.
Justice Muhammad Ali Mazhar remarked that the governor had thrown the matter into the court of Election Commission of Pakistan (ECP), asking who appoints the governor? To which, Barrister Zafar said a governor was appointed with the consent of the president.
The lawyer further said that the meeting between the governor and the ECP team that was held on the directions of Lahore High Court (LHC) had ended without any conclusion.
“The president unilaterally announced the election date while analysing the whole situation”, he added. Barrister Zafar said that the ECP also did not comply with the court’s orders of holding elections in Punjab.
The lawyer explained that it was said that the date for elections could only be decided after discussion with the governor. Barrister Zafar contended that the ECP was bound to hold polls under Articles 108 and 109 of the Constitution.
“However, the ECP said that no outcome came out of the meeting with the governors,” he maintained, adding that the details of the meeting were published by a newspaper. “This means the court orders were violated,” the court asked.
‘Who will give elections date’
At one point, Justice Shah remarked that the president’s letter to election commission was contrary to the high court’s order. “The court asked ECP to announce date after consultations with the governor. But the president sought asked the ECP to announce a date,” he said.
Here, Justice Mazhar pointed out that the ECP had written in its letter that consultation with the governor was not in the Constitution. “If consultations can’t be held, then the electoral body should have given a date itself,” he added.
To which, Justice Shah said that as per his understanding, the ECP was saying that the Constitution does not included consultations over the elections date. “But the high court asked it to consult with the governor.”
However, Barrister Zafar termed the move “delaying tactics”, stressing that it was ECP’s constitutional duty to give a date for elections. To which, Justice Mandokhail stated: “The question in the suo motu case is that who will give the date for elections.”
The lawyer noted 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.” 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.
Meanwhile, Justice Shah asked who issues the notification of the assembly’s dissolution. To which, Barrister Ali Zafar responded that the Election Commission of Pakistan (ECP) had issued the dissolution notice.
President can give election date: CJP
At one point, Justice Akhtar recalled that an amendment was made in the Constitution to empower the president and governor to give the election date. “As far as Punjab is concerned, President Alvi may have given the correct date,” he added.
On the other hand, Justice Shah asked whether or not the ECP could conduct the elections automatically if the governor did not give the election date. To this, Barrister Zafar replied: “The election commission is a constitutional institution. It should have the authority.”
Meanwhile, CJP Bandial observed that the parliament had “made it clear” in the Elections Act that the president can also give the election date.
Justice Shah then asked who would give the election date if the governor refused to do anything regarding an assembly’s dissolution.
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, Justice Shah remarked that the president would have to step where the “governor fails”.
‘Elections not possible before April 25’
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, Barrister Zafar replied that there was no room for delay in the Constitution.
Meanwhile, AGP Shehzad Ata Elahi said 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. He also said that the election date was moved forward in the 2008 general polls.
Justice Akhtar responded to him and said that it was due to a national tragedy. “If the election is announced today, then the 90-day limit cannot be followed,” the attorney general said.
Read More: Punjab, KP elections: SC judge expresses reservations over suo motu notice
“We want to end the case tomorrow,” Chief Justice Bandial said, adjourning the hearing of the suo motu case till 9:30am tomorrow (Tuesday).
The CJP remarked that the bench will also hear the presidents of Supreme Court Bar and Islamabad High Court Bar on Tuesday. Farooq H. Naik said he would present his brief arguments in tomorrow’s hearing.
President Alvi’s Principal Secretary apprised the court that the President will be represented by Salman Akram Raja.
Last hearing
In the last hearing, the Supreme Court issued notices to all major political parties in suo moto hearing about elections in Punjab and Khyber Pakhtunkhwa (KP) provinces.
Political parties should submit their points of view in the case, the bench remarked. The court also served notices to the Election Commission of Pakistan and the Attorney General.
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.
Read more: PRESIDENT ARIF ALVI ASKS ECP TO ANNOUNCE KP, PUNJAB ELECTION DATES
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.
