-President being threatened with Article 6, lawyer says
-Political parties fail to reach consensus over polls date
-Decision to be announced at around 11:30am today
-Ruling alliance withdraws plea seeking full court bench
-President to withdraw advice regarding KP polls date
By Anzal Amin
ISLAMABAD: The Supreme Court of Pakistan Tuesday reserved the verdict in the suo motu notice taken over the election date of Khyber Pakhtunkhwa (KP) and Punjab, with the decision set to be announced today (Wednesday) at around 11:30am.
A five-member bench headed by Chief Justice Umar Ata Bandial and comprising Justice Munib Akhtar, Justice Muhammad Ali Ma-zhar, Justice Mansoor Ali Shah, and Justice Jamal Khan Mando-khail conducted the hearings for two consecutive days — from Monday to Tuesday.
“I would like to thank all the lawyers who have assisted us throughout the hearings. I cannot say when will we be back [to announce the verdict],” the CJP said after the parties involved in the case wrapped up their arguments. Although the verdict was expected today, the CJP’s secretary said that the decision will be unveiled today.
The top court had also earlier today asked the political parties — the Pakistan Tehreek-e-Insaf (PTI) and the ruling alliance — to agree upon a mutual date for the elections, but they could not reach a consensus. The Pakistan Muslim League-Nawaz’s (PML-N) lawyer asked the court to continue the proceedings as the coali-tion partners needed more time to consult with each other. The SC had taken the suo motu notice of an apparent delay in the elections of the two assemblies, on February 23, following Presi-dent Arif Alvi’s announcement of the date of polls, a move that drew strong criticism from the government
As per the CJP, the suo motu notice had been taken to assess who was eligible to issue the date for polls and who had the constitu-tional responsibility of conducting elections and when. A nine-member larger bench was constituted initially to hear the case but the bench was reconstituted after four judges — Justice Ijaz Ul Ahsan, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Athar Minallah and Justice Yahya Afridi — of the bench recused themselves.
Meanwhile, the ruling alliance — PML-N, Pakistan Peoples Party, and the Jamiat Ulema-e-Islam (JUI-F) — also withdrew their plea for the formation seeking a full court bench after the reconstitu-tion of the bench hearing the case.
At the outset of the hearing today, Attorney General for Pakistan Shehzad Ata Elahi informed the court that he was ready to give arguments.
He also raised an objection to the Supreme Court Bar Association President Abid Zuberi, saying that his name had been removed from the judicial order.
At this, CJP Bandial said that the court sees the SCBA as an insti-tution. “What is written in the court is not part of a judicial order. It becomes an order when the judges sign it,” he remarked.
After this, Zuberi started his arguments. “Supreme Court has de-clared it in the past that the elections should be held in 90 days,” Zuberi stated. At this, Justice Mandokhail remarked that the pres-idents and governors were bound to follow the Cabinet’s advice as per the Constitution.
“Can the president or governors give the election date on their own,” he inquired. Meanwhile, CJP Bandial remarked that the governor wasn’t constitutionally bound to follow anyone’s advice regarding the appointment of a caretaker government or deciding the election date.
While Justice Mazhar added that “no one’s advice is needed where there is discretion.” Moving on, the CJP asked that who would issue the notification for the assembly dissolution.
Responding to the question, Zuberi said that the notification for the dissolution of the Punjab Assembly had been issued by the law secretary.
At this point, Justice Akhtar remarked that the 90-day period starts right after the assembly has been dissolved.
Meanwhile, Justice Shah inquired if the caretaker chief minister could advise the governor on the election date.
To this, Zuberi said that the caretaker setup and the election date are announced simultaneously. Justice Shah asked whether the governor could reject the caretaker government’s advice.
At this, Zuberi replied that the caretaker setup’s job was to look after government affairs instead of giving a date for the polls, which is the governor’s prerogative.
While referring to the Saifullah case, Zuberi said that the 12-member bench, in that case, had declared the election process a must.
At this, Justice Mandokhail remarked that Article 48 of the Consti-tution states that every act and step taken by the president would be on the government’s advice.
CJP Bandial seconded Justice Mandokhail’s remark, saying that the deciding a date for the polls would be based on the advice under Article 48. While Justice Akhtar remarked that the caretaker setup is appointed after seven days after the assembly’s dissolution.
“Harmony among different clauses of the Constitution is neces-sary,” he added. Meanwhile, Justice Mazhar remarked that in Pun-jab’s case, the ministry of law had issued the notification, not the governor.
Justice Mandokhail said that the government can still tell the gov-ernor to conduct elections, as per the Constitution. Justice Shah wondered how could the governor refuse to conduct elections if he receives the government’s advice regarding the poll date.
Moving on, Zuberi stated that the caretaker setup was established in Punjab on January 22. Justice Mazhar remarked: “A basic ques-tion is that the governor is saying that he didn’t dissolve the as-sembly.”
Zuberi shared that as per Article 105(3) mentions the process of giving an election date. Justice Mandokhail said that the govern-ment is not bound to give a date for polls. Zuberi then com-plained that the date for the polls has not been announced even after so many days.
To this, CJP Bandial asked Zuberi if he was arguing that the gov-ernment wasn’t fulfilling its constitutional duty.
“Holding elections within 90 days is the spirit of the Constitution,” he observed, adding that the court would ask the AGP to assist it on the legal points.
Meanwhile, Zuberi contended that the president would announce a date for the polls if the duration of the assembly ends.
“I contend that fixing the date of polls is the prerogative of the president,” he added. At this, Justice Mazhar remarked that a 52-day margin would be kept whenever the governor gives the date.
Meanwhile, Justice Mandokhail remarked: “President’s powers have not been stated directly by the Constitution.”
“The action will be taken as per the law if the Constitution doesn’t have the powers,” he said, adding that the laws are based on the Constitution. Meanwhile, Justice Shah inquired under which law the president was “writing the letters”.
At this, Zuberi said that the president had written the letters for consultations. To this, the judge replied that the Constitution does not state anywhere about holding consultations.
“If we assume that the law allows the president, even then he is bound to [follow] the advice,” Justice Mandokhail remarked. Meanwhile, Justice Shah said that the caretaker government can also ask for deciding a date.
At this, CJP Bandial remarked that the court would decide if the president needed consultation or not, after hearing the other par-ties in the case.
Zuberi argued that the governor wasn’t bound to follow the ad-vice for announcing the date of the election. The same authority as the governor has been given to the president, he added.
“The president either is not bound to [follow] the advice,” Zuberi said while wrapping up his arguments. Justice Shah remarked that the governor was bound to follow if he was advised to decide an election date.
After this, the AGP Shehzad Ata Elahi started his arguments. “The president can give a date for the election only in case of the disso-lution of the National Assembly,” he said. He added that the oth-er scenario in which the president can give dates for elections is when polls are being conducted countrywide.
At this, CJP Bandial remarked that the president’s powers to make a decision at the discretion and on advice had a difference.
AGP Elahi then argued that the ECP wouldn’t follow the orders if the governor tells it to hold the election a day after the assembly’s dissolution.
At this, Justice Akhtar remarked that the governor had to keep the Election Act in view as well.
The AGP remarked that the elections should be held in 90 days and the duration shouldn’t be prolonged.
Justice Shah asked if the ECP could delay the election if the date is announced by the governor.
At this, the AGP replied that the electoral body can ask for hold-ing elections in 89 days if the governor orders conducting election on the 85th day after the dissolution of the assembly.
On this, CJP Bandial remarked that it was the reason that the gov-ernor has been bound to hold consultation with the ECP.
“Whether it is the president or the governor, everyone is bound by the Constitution and law,” he said
To this, Justice Mazhar suggested holding a consultation between the governor and ECP and giving a date today. At this point, the court adjourned the hearing for half an hour.
When the hearing reconvened, the AGP continued his arguments and said that the Constitution cannot be interpreted through par-liamentary legislation.
“The Constitution is supreme and it doesn’t allow the president to announce a date of the election,” he added.
He said that the Lahore High Court had clearly said that conduct-ing the elections and announcing a date for it was ECP’s authority.
He further stated that the elections were a “subject” for the Cen-tre.
At this, Justice Akhtar said that the ECP has to decide a date for the election and the governor has to announce it.
Justice Mandokhail interjected and wondered if everything was clear then what was the fight about?
Meanwhile, CJP Bandial observed that the hearing of intra-court appeals in the LHC was being adjourned for 14 days. He asked why was such an important constitutional issue was being deferred for long periods.
Moreover, the CJP also inquired under which clause of the Consti-tution, the ECP has been given the power to decide the poll date.
On this, Justice Mazhar said that the ECP’s authority starts after the announcement of the election date, as per the Constitution.
The CJP then remarked that the president had some democratic and some non-democratic powers over the date.
At this, Justice Mazhar asked why don’t abolish Section 57 if the president is not authorised to give the election date. He asked if anyone had challenged Section 57 for being contradictory to the Constitution.
The judge also asked for the AGP’s opinion that who had the au-thority to give the date.
Responding to the query, AGP Elahi said that the ECP had the au-thority to give a date for the election.
In response to AGP’s comment, Justice Mandokhail said that no consultation was needed if the ECP had to announce the date.
However, Justice Akhtar asked where would the governor and president’s role go if that was the case.
“Is the president’s role of a newscaster that he makes the an-nouncement,” he said, adding that the ECP should use its website if it was just about making an announcement.
At this, the CJP remarked that ECP’s role is important under any circumstances.
“According to you president’s role is central while the other side says it is consultative,” CJP Bandial said while addressing Justice Akhtar.
On this, Justice Akhtar asked if the duration of the election cam-paign could be shortened.
Responding to the question, ECP’s lawyer maintained that the printing process of the ballot papers required time. He, however, said that the duration of the election campaign can be shortened up to two weeks.
Justice Akhtar remarked that implementing the constitution was more important.
On this point, AGP Elahi contended that wouldn’t the 1988’s elec-tion become controversial if elections have to be conducted in 90 days?
He said that the 2008 polls were also held after the designated pe-riod.
At this, CJP reminded the AGP that in 2008 there was a big trage-dy. The CJP was referring to the murder of former prime minister Benazir Bhutto.
At this, Justice Mandokhail reiterated the question of who will give the date.
“Had the matter of fixing a date been clarified in the law, we wouldn’t be standing at this point today,” he remarked.
