KP, Punjab polls: Reconstituted SC bench debates governor, president’s role after 4 judges dissociate themselves

Published February 27, 2023
CJP Umar Ata Bandial, Justice Mansoor Ali Shah, Justice Munib Akhtar, Justice Muhammad Ali Mazhar and Justice Jamal Khan Mandokhail are part of the reconstituted SC bench hearing the election suo motu case. — SC website
CJP Umar Ata Bandial, Justice Mansoor Ali Shah, Justice Munib Akhtar, Justice Muhammad Ali Mazhar and Justice Jamal Khan Mandokhail are part of the reconstituted SC bench hearing the election suo motu case. — SC website

The authority and role of governor and president were among the Constitutional points pondered upon as a reconstituted five-member Supreme Court bench conducted the suo motu proceedings regarding the delay in the announcement of a date for elections in Punjab and Khyber Pakhtunkhwa.

The resizing of the bench to five from its original size of nine was an unexpected development before the court proceedings began today.

The original 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 their order on Feb 27, all the nine judges sent the matter to the CJP once again, asking for the reconstitution of the bench in light of the additional notes authored by Justice Mandokhail, Justice Shah, Justice Afridi and Justice Minallah as part of the Feb 23 order by the chief justice.

Two of these judges had also questioned the SC’s jurisdiction to invoke Article 184(3), which relates to its suo motu powers, in this matter.

Read: Suo motu: Key points from the 4 dissenting SC judges

CJP Bandial, Justice Shah, Justice Mandokhail, Justice Akhtar and Justice Mazhar heard the case today.

Justice Ahsan and Justice Naqvi — whose inclusion to the original bench was opposed by the coalition government and the Pakistan Bar Council — as well as Justice Minallah and Justice Afridi have distanced themselves from the bench. “These four judges have shown grace and stepped away from the bench,” said the chief justice at the outset of the hearing.

Division in the bench had also emerged in the very first hearing after Justice Mandokhail, who is part of the current bench, objected to the suo motu notice itself as “unjustified”. The judge had also mentioned audio recordings that purportedly featured fellow judge — Justice Sayyed Mazahar Ali Akbar Naqvi.

The reconstituted bench began hearing the case around 1:30pm today after two delays in its scheduled timings of 11:30am and 12:30pm.

Parliament made it clear that president can give election date: CJP

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.”

At one point in the hearing later in the day, Justice Akhtar recalled that in 1976 the Constitution was silent on the issue of whose responsibility it was to issue the election date. “[Therefore], an amendment was made 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.

Meanwhile, Justice Mandokhail said it was the responsibility of the governor to issue an order for the assembly’s dissolution based on the summary, adding that the governor would also have to give the election date in the same order.

On the other hand, Justice Shah asked whether or not the Election Commission of Pakistan (ECP) could conduct the elections automatically if the governor did not give the election date. To this, Barrister Ali 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. “How can the intention of the parliament be evaluated?” the CJP asked.

Justice Shah then asked who would give the election date if the governor refused to do anything regarding an assembly’s dissolution. “Where the chief minister dissolves the assembly, and the governor is not in the picture so what authority will he (governor) have there?” the judge asked.

‘High court orders violated’

Earlier in the hearing, Barrister 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, the 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 the 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 a 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 commission 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 include consultations over the date of the elections.

“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 the ECP’s constitutional duty to give a date for elections.

At that point, Justice Mandokhail stated: “The question in the suo motu case is 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 question”.

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 a 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.

Role of governor is that of a post office: Justice Shah

Once the hearing resumed following a break, Justice Shah asked who issues the notification of the assembly’s dissolution, to which Barrister Zafar replied that the ECP 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 the governor was debated. 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 with 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 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 in 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 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 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.

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 of 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 had petitioned the Supreme Court for the formation of a full court — comprising all judges except 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 best interest of justice and to strengthen the people’s confidence in the Supreme Court”.

It is imperative that the full court — minus the two judges, who have already disclosed their minds in the matter — be constituted to hear the case in the interest of justice and fairness, contends the petition, which has been moved under Order 33 Rule 6 of the Supreme Court Rules 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 read out a note and raised objections to the effect that since the two-member bench consisting of Justice Ahsan and Justice Naqvi had already rendered a definite opinion on the issue as recorded in the court’s Feb 16 order, it would amount to a violation of Article 10A if they remain part of the larger bench.

Justice Mandokhail, the ruling parties recalled, had further stated that it was not appropriate to refer the matter to the CJP under Article 184(3) and that the suo motu action taken by the latter was not justified. Later, the Supreme Court on the same date issued notices to the relevant stakeholders and that the applicants appeared before the court on Feb 24 through their counsel and read a joint statement, seeking the recusal of Justice Ahsan and Justice Naqvi from any matter involving the PPPP, PML-N and JUI-Pakistan and their leadership.

According to the petition, these circumstances have raised several questions of immense legal, constitutional and public importance as recorded in the CJP’s note while 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 attempt to pave the 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.

At the same time, the PTI had on Jan 27 approached the LHC seeking orders for the Punjab governor to immediately announce a date for an election in the province following which the court had directed the ECP to immediately announce the date for elections after consultation with the governor.

Meanwhile, President Arif Alvi had also urged the ECP on Feb 8 to “immediately announce” the date for polls in KP and Punjab and put an end to “dangerous speculative propaganda” on both the provincial assembly and general elections.

However, so far, the governors of the two provinces have refra­ined from providing any date for the polls on several pretexts.

Last week, President Alvi had invited Chief Election Commissioner (CEC) Sikandar Sultan Raja for an urgent meeting regarding consultations on election dates but the ECP told him he had no role in the announcement of dates for general elections to provincial assemblies and the commission was aware of its constitutional obligation in this regard.

Subsequently, the president on Monday unilaterally announced April 9 as the date for holding general elections for the Punjab and KP assemblies.

The move drew sharp criticism from his political opponents, who accused him of acting like a PTI worker while the ECP said it would announce the poll schedule only after the “competent authority” fixes the date.

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