Apex court upholds constitution by ordering Punjab, KP elections within 90 days

Apex court upholds constitution by ordering Punjab, KP elections within 90 days


Top court declared the president's move to announce date for elections in KP null and void

ISLAMABAD (Dunya News) – The Supreme Court of Pakistan on Wednesday directed the authorities concerned to hold the general elections in Punjab and Khyber Pakhtunkhwa within 90 days of the dissolution of the assemblies. 

A five-member bench, headed by Chief Justice Umar Ata Bandial and comprising Justice Munib Akhtar, Justice Muhammad Ali Mazhar, Justice Mansoor Ali Shah and Justice Jamal Mandokhail, announced the verdict on the suo motu notice with a split decision of 3-2. Justice Shah and Justice Mandokhail wrote dissenting notes as they raised objections to the very admissibility of the case. 

Previously, the case was being heard by the nine-member bench but it split on Monday into a five-judge bench after four judges – Justice Ijazul Ahsan, Justice Syed Mazahar Ali Akbar Naqvi, Justice Yahyah Afridi and Justice Athar Minallah - recused themselves from hearing the case. 

The assemblies were dissolved by the Pakistan Tehreek-e-Insaf (PTI) in January to seek fresh elections in the provinces. After the Election Commission of Pakistan (ECP) and governors of both provinces failed to give a date for the elections, President Arif Alvi unilaterally announced that elections would be held in Punjab and KP on April 9 as time was running out. 

Key Points of the Ruling 

  • Elections must be held within 90 days of dissolution of assemblies
  • Two judges raised objections to the very admissibility of the case 
  • President can announce date for elections when assembly is not dissolved by governor
  • ECP, president have been directed to hold consultation for fresh date for polls in Punjab
  • President’s notification of KP elections declared null and void
  • KP governor ordered to announce date for elections as he had dissolved the assembly

The apex court declared the president's move to unilaterally announce date for elections in KP null and void, saying the provincial assembly was dissolved by Governor Ghulam Ali Khan and he was responsible for giving the date. However, the top court upheld the president's notification of elections in Punjab as the provincial assembly was dissolved there without the consent of the governor.

If it was impossible to hold elections in Punjab on April 9, the president and the ECP should change the schedule with consultation, ruled the top court. It said the KP governor deviated from his constitutional responsiblity by not annoucing a date for the elections. The apex court directed the governor to announce a date for elections as soon as possible.

s.m.c._1_2023_01032023 by Mehar Mahmood Idrees on Scribd

It ruled that Section 57 of the Election Act 217 empowered the president to announce a date for elections if the assembly was not dissolved by the governor. It said the polls should be held within constitutional timeframe. The apex court has also directed the federal and provincial institutions to assist the ECP in the election process.

Tuesday's Hearing 

At the outset of the hearing on Tuesday, Attorney General for Pakistan (AGP) Barrister Shehzad Ata Elahi raised objection about Islamabad Bar Council lawyer Abid Zuberi, saying his name was removed from the previous order of the top court. CJP Bandial remarked that an order became a decree when it was signed by the judges. He then allowed Mr Zuberi to submit his arguments.

At one point during the hearing, Justice Mandokhail asked if the governors and president were bound to take advice from the cabinet in the matter. “Can they announce the date for polls on their own?” he questioned. 

The chief justice observed there was no need to take an advice when a person had a discretionary authority. 

Every action of president bound to be on govt’s recommendation under Article 48 

The CJP then inquired, “Who can issue the notification of dissolving the assemblies?” Mr Zuberi said the law secretary had issued the notification to dissolve the assembly. He said the apex court had declared in the past that elections were to be held within 90 days.

Meanwhile, Justice Mandokhail commented on the authority of the president to issue the date for elections, remarking that the Article 48 of the Constitution explained that every action of the president should be based on the recommendation of the government. At this, the CJP remarked: “This means that the announcement of the date for polls will be on advice of the government”. 

However, Mr Zuberi argued that the governor had the authority to dissolve the assemblies. When the CJP asked, “Who will then issue the notification of the dissolution of assemblies?” 

The lawyer said the governor had to issue a notification of dissolution of the assembly on the advice of the chief minister. He said the assemblies automatically stood dissolved within 48 hours of sending the advice whether the summary was signed by the governor or not. In this case, the notification of the dissolution was issued by the law secretary and not the governor, he said.

Justice Mandokhail observed that the government could still ask the governor for giving a date for elections today as per the Constitution. Justice Shah asked whether the president could refuse to approve an advice of the governments.

Hold Consultation on Election Date

At one point durig the hearing on Tuesday, the court directed the political parties - both in power and opposition - to sit together to work out the date for the Punjab and Khyber Pakhtunkhwa elections. The apex court directed PTI leaders Shireen Mazari and Fawad Chaudhry to hold consultation with party chairman Imran Khan and legal team of the ruling coalition to consult their leaders on the election date and informed the court by 4pm.

The latest directive was issued after the three ruling parties – PML-N, PPP and JUI-F – withdrew the plea seeking formation of the full bench to hear the suo motu case following the recusal of four judges from the bench. While withdrawing the petition, Farooq H Naek said the ruling partners did not want to pursue the plea.

Justice Mansoor remarked the political parties should think about the country instead of indulging in the legal battle.

When the bench resumed hearing, the PML-N sought more time for holding consultation while the PPP lawyer said his party leadership was of the view that giving a date for elections did not fall under its domain.

President Decides to Withdraw Notification of KP Elections

During the hearing, senior lawyer Salman Akram Raja informed the apex court that President Arif Alvi had decided to withdraw a notification regarding elections in the Khyber Pakhtunkhwa as it was the authority of the governor to announce a date for polls after dissolving the assembly.  However, the notification regarding elections in Punjab would not be taken back as Governor Balighur Rehman had not dissolved the assembly which automatically disbanded after 48 hours of the summary sent by the chief ministry.

After the governors and Election Commission of Pakistan failed to announce a date for elections after the dissolution of the assemblies, the president under Election Act 217 announced that general polls in both provinces will be held on April 9 -- a move that drew massive criticism from government. 

CJP Bandial lends his weight behind president's prerogative

On Monday, CJP Bandial said the president could announce the election date as parliament had clearly written it in the Elections Act 2017.

At the outset of Monday's hearing, CJP Bandial remarked that the four judges had shown grace and distanced themselves from the bench. He said the remaining members of the bench would continue to hear the case for the interpretation of the Constitution.

The CJP said the court would again hear the suo motu case at 9:30am tomorrow (Tuesday) and try to wrap it up. Talking about the leak of Justice Mandokhail’s note to social media, he said precautionary measures would be taken to avoid such incidents.

At one point during the hearing, Barrister Ali Zafar said the elections in the provinces should be held within 90 days after the dissolution of the assemblies as per the Constitution. He said the Lahore High Court (LHC) had ordered the ECP to hold a meeting with governor to decide a date for elections but that meeting ended without any outcome. Later, the president unilaterally announced the date after the electoral body refused to attend the meeting called by him on the matter.

In the previous hearing, the PML-N, the PPP, the JUI-F and other parties raised objection against two judges of the nine-member bench of the apex court, saying a full bench should be made to hear the case.The ruling coaltition has also submitted an application seeking formation of the full bench case. 

Details of Friday's Hearing 

Barrister Ali Zafar represented the Punjab and KP speakers. The JUI-F is represented by Kamran Murtaza, PPP by Farooq H Naek, Nayer Bukhar and Farhatullah Babar, PML-N by Mansoor Awan, the Punjab governor by Advocate Mustafa Ramday. Supreme Court Bar Association President Abid Zuberi, Islamabad High Court Bar President Shoaib Shaheen and Attorney General of Pakistan Shehzad Ata Elahi and Additional Attorney General Amir Rehman attended Friday's hearing.

At the outset of the hearing, Mr Naek had raised objections over inclusion of Justice Ijazul Ahsan and Justice Mazahar Naqvi. He said the suo motu notice was taken by the chief justice on the note of both judges in Ghulam Mahmood Dogar’s service case, therefore, they should separate themselves from the bench. The PPP lawyer also sought formation of the larger bench to hear the poll date case. 

Meanwhile, the PML-N, the JUI-F and the PPP had also submitted a joint statement in the court, raising objection to the presence of two judges. They said both judges should not hear the case. 

The CJP remarked it was his prerogative to take a suo motu notice. “Today is meant to mark the attendance of all stakeholders,” he said, adding that representatives of all four provinces were present in court. Later, the chief justice adjourned the hearing till Monday.

On Thursday in last week, the bench issued notices to Attorney General for Pakistan (AGP) Shehzad Ata Elahi, Election Commission of Pakistan (ECP), government through the cabinet secretary, chief secretaries of Punjab and KP, Pakistan Bar Council (PBC), the Supreme Court Bar Association (SCBA), all the advocate generals of the provinces, and the Pakistan Democratic Movement (PDM), directing them to submit their arguments on Friday (today).

As no notices can be issued to President Dr Arif Alvi and the two governors under Article 248 that provides them immunity, the apex court has ordered principal secretaries to contact them to get the point of view on the matter.

Bench Appears Divided on Suo Motu in Thursday’s Hearing

During Thursday's hearing, Justice Mandokhel raised objection to the suo motu notice and called it “unjustified”. He said the Punjab and KP speakers had filed their petitions before the apex court’s notice. He said the notice was taken on the note of Justice Naqvi and Justice Ahsan who had given it during the hearing of the case pertaining to transfer of Lahore Capital City Police Officer Ghulam Mahmood Dogar. 

He highlighted that the chief election commissioner was summoned by both judges in the case despite the fact that he was not a party in it.

Irrespective of the CEC reply, Justice Ahsan and Justice Naqvi referred the matter to the CJP to take the suo motu notice. He observed there was no connection between the election and Lahore CCPO’s case. In these circumstances, it was not justified to send the matter to the chief justice to take the suo motu notice under Article 184 (3).

Two other judges – Justice Athar Minallah and Justice Syed Mansoor Ali Shah – highlighted other aspects of the case while raising questions about motivation behind dissolution of the assemblies. 

CJP Bandial, on the day one, said the bench would hear three related cases and determine who was supposed to give the elections' dates. He said it was an important case and should be dealt with in line with the Constitution. The apex court, he said, would not tolerate violation of the constitution. He said the schedule of next week had been put off to give due weightage to this case. He said the judges would listen to the viewpoint of all concerned and salient features would be discussed on Friday.

He said multiple factors led the apex court to take the suo motu notice, adding that the 90-day period for conducting provincial elections was running out. He said the matter was also pending with the Lahore High Court, adding that the high court could be bypassed in case of emergency. The CJP remarked, “We want implementation of the Constitution dictates".

At that point, Barrister Ali Zafar said he wanted to bring some things related to the president’s announcement about the date for elections on the record. The CJP replied Mr Alvi announced the date for elections in the provinces under Section 57 (notification of election programme) of the Elections Act 2017. He said multiple opinions had surfaced about this part of the act and it needed to be interpreted.

Mr Zafar requested the court to take up a relevant petition filed by him. However, CJP Bandial remarked that the court was looking into three different matters. “We have to determine who has the authority to give date for elections after the dissolution of the assemblies”.

At one point during the hearing, the attorney general of Pakistan sought time from the court for preparation in the case. He said it would be difficult to come up with preparation during Friday's hearing if so many notices were issued to people. In reply, the top judge said the court would discuss only essential things, adding that the detailed hearing of the case would be held on Monday next week.

He said the court wanted to wrap up the case as soon as possible and the time given by the Constitution for the election was running out. Saying the court would not tolerate violation of the Constitution, the CJP remarked the time for elections could only be extended if there was a serious situation. He said the situation had changed after the president announced a date for the elections. The top court would see the constitutional points in the case and then implement it, he added.