ISLAMABAD, Feb 28 (EW): The Supreme Court on Tuesday directed the incumbent government and the PTI to ‘sit together’ and decide on a date for elections in Khyber Pakhtunkhwa and Punjab by 4pm today.
Chief Justice of Pakistan (CJP) Umar Ata Bandial said that even if the court takes a decision on the matter of poll dates, “the litigation will continue and this will become very costly for the people and the political parties”.
The court passed the instructions after it resumed hearing the matter after a short recess.
A five-member larger bench of the apex court, led by Chief Justice of Pakistan Umar Ata Bandial, is conducting the hearing.
Justice Mansoor Ali Shah, Justice Muneeb Akhtar, Justice Jamal Khan Mandokhail and Justice Muhammad Ali Mazhar are part of the bench.
Supreme Court Bar Association (SCBA) President Abid Zuberi, Attorney General of Pakistan (AGP) Shehzad Ata Elahi and President Dr Arif Alvi’s counsel Salman Akram Raja are present in court. JUI’s Kamran Murtaza is also present.
During his arguments, the AGP contended that the SCBA president’s name was removed from the court order even though the SC recognised it as an institution.
CJP Bandial stated that what was presented in the court was not a court order, and would become a decree if the judges overruled it.
The AGP objected to SCBA bar president Abid Zuberi for representing the bar as he was the lawyer of the petitioner.
Zuberi maintained that he was a lawyer of the bar and not a political party. He furthered that the Supreme Court declared in the past that the elections must be held in 90 days.
Justice Jamal stated the president and the governor are bound by the advice of the cabinet in the matter and questioned if the president and governors could give the date of the election on their own.
To this, Justice Bandial stated that the governor is not bound by anyone’s advice on the appointment of the caretaker government and the date of the election.
“Where there is discretionary authority, there is no need for advice,” Justice Mazhar said.
When asked by the CJP who notified the dissolution of the assembly, Zuberi stated that the Punjab Assembly dissolution notification was issued by the secretary of law.
Justice Jamal maintained that Article 48 of the Constitution of Pakistan stated that every act and action of the president shall be on the recommendation of the government, and questioned if the current government or the previous regime would call for the election announcement.
Justice Bandial said that accordingly, the date of the election will be given with advice.
Zuberi stated that there were four methods of dissolution of the assembly in the Constitution.
Justice Muneeb said that the caretaker government was formed after seven days after the dissolution of the assembly. He furthered that it was necessary to harmonise the various clauses of the Constitution.
“In the case of Punjab, the Ministry of Law issued the notification, not the governor,” Justice Mazhar said.
Zuberi stated that according to Article 112 of the constitution, the government could end on a no-confidence motion or within 48 hours.
Justice Jamal said that according to the constitution, even today the government could ask the governor to announce the date for elections. Justice Shah questioned how the governor could refuse advice regarding if the advice came for the government’s dates.
“A caretaker government came to Punjab on January 22. The authority of the caretaker government is to run daily affairs,” Zuberi said.
Justice Muneeb stated that the 90-day time to hold polls began with the dissolution of the assembly and asked why time was being wasted after the dissolution of the PA.
Justice Shah asked if the caretaker chief minister could advise the governor to give the date of the election and if the governor could reject the advice of the caretaker government.
Zuberi stated that the election date and supervisory setup were announced together and that the authority to provide the date of the election belongs to the governor and not the caretaker chief minister.
Justice Mazhar maintained that the constitution was clear that the governor would announce the poll date when the assembly was dissolved and that the governor’s authority to give a date was different from other usual factors.
Justice Jamal questioned if there was a restriction on the caretaker government that barred it from asking the governor to propose a date. He further asked if the summary could not be sent to the governor.
Zuberi stated that the constitution detailed that elections were to be held in 90 days and questioned what the caretaker government could do if it had not given any advice yet.
The CJP stated that the court would also hear the AGP’s arguments regarding the matter of the advice of the caretaker cabinet.
Zuberi continued that the president was given certain powers by the Constitution and the Elections Act, and under the Election Act he could give a date for the elections after consulting the ECP.
The CJP questioned why the president delayed providing a date, to which Zuberi stated that the president’s counsel could better answer thid.
Justice Bandial then asked who the governor must consult for announcing poll dates. Zuberi stated that the consultation could only be done with the ECP.
Justice Mazhar stated that the question was that the governor said he did not dissolve the assembly.
Zuberi said the mention of giving an election date is only in Article 105 (3) of the Constitution.
Justice Mandokhail said there was no restriction on giving the date for the election of the government. To this, Zuberi stated that the election had not been announced for several days.
The CJP questioned if the SCBA president was claiming that the incumbent government was not fulfilling its constitutional responsibility. He added that conducting elections in 90 days was the spirit of the Constitution.
Zuberi stated that if the PA was dissolved under the pressure of time, the president could give an electoral date. Giving his opinion, Zuberi said that announcing poll dates was the authority of the president of the country.
“If the Election Commission shows an incapacity to conduct elections, is the governor still bound to give the date,” Justice Shah questioned. Zuberi replied that the governor was bound to give the date in every case.
Justice Mazhar said the governor will give the date keeping in mind the decisions of the Election Commission.
“Can the President take any decision without the advice of the Cabinet?” Justice Shah asked.
Justice Jamal maintained that the powers of the president were clear in the Constitution and that he was bound by advice.
Zuberi stated that the president was not obliged to give advice for everything and could exercise every power given to him under the law.
“The president and the governor are only bound to consult the ECP,” Zuberi said.
Justice Shah stated that the president as head of state could only take decisions only on advice.
When asked if the duration of the election campaign could be reduced, the advocate for the ECP stated that time was required for printing ballot papers and that the duration of the election campaign can be up to two weeks.
Justice Muneeb maintained that it was more important to follow the Constitution. However, the AGP reminded the court that the 2008 elections were also held after the stipulated time period.
Justice Mandokhail said the first question was who would announce the date of the elections and that the process would start after the ECP recommended a date. He added that the hearing would not have taken place if the Constitution clarified responsibility on the matter of announcing the date for elections.
The CJP said that the authority of the Election Act cannot be higher than that of the Constitution, while the authority of the president cannot be inconsistent with the Election Commission.
Justice Muneeb maintained that the attorney general was speaking against the law instead of defending it. “If Section 57-1 of the Constitution is abolished, the election will not be held,” Justice Mazhar said.
The AGP stated that in the current situation, the ECP should announce the electoral date and could state that the elections are not possible till April 14, adding that the electoral body was empowered. Elahi continued that no party had provided a date so far and everything was “up in the air”.
Justice Mandokhail questioned ECP’s authority to delay the date for 90 days, reminding the AGP that the entire dispute was about holding elections within 90 days.
The AGP said that Article 254 could be invoked on concrete grounds, to which Justice Mazhar questioned how could the article be invoked without an announcement of the date. If the law is not clear, how can the Election Commission make a mistake, the chief justice questioned.
The AGP stated the court could give allow a delay of 90 days. “Do not think that the court will be a party to any unconstitutional work,” CJP Bandial warned, adding that Article 254 would be applied wherever possible.
Justice Mandokhail questioned if the caretaker cabinet could send a summary to the governors.
“Both the governor and the cabinet are bound by the Constitution. The caretaker cabinet cannot send a summary for the election date,” the AGP iterated.
Justice Mandokhail stated that the parliament should make a law today to settle the matter of the electoral date. The AGP replied that the current assembly is incomplete and said the court instructed the governor to announce a date, but the president declared that he would announce a date for the polls. He added that the president was not asked to announce a date.
“If the prime minister does not give advice, how long should the president wait,” Justice Mazhar questioned.
Justice Mandokhail maintained that laws were made within hours. To this, the AGP said that questions were being raised on the legislation passed by the present parliament.
The AGP insisted that the ECP should give the date of the elections. “The period of 90 days is closing completion, I do not doubt the intention of the Election Commission,” he added. He furthered that the ECP could not evade its responsibility.
After the AGP concluded his arguments, ECP lawyer Sujeel Shehryar Swati began his. Swati maintained that the ECP could announce the date of by-elections, and added that according to the Constitution, the governor should provide the date of the provincial elections.
“The Election Commission operates according to the Constitution and the law,” Swati said.
The apex court summoned the KP governor’s lawyer, Khalid Ishaq, to the rostrum and the CJP asked him what the provincial governor’s letter meant.
Ishaq stated that if the governor dissolves the assembly, he was authorised to give the date. Justice Mazhar maintained the governor did not write anywhere in the letter that the date for polls would not be provided.
Ishaq said that the governor of KP dissolved the assembly on the advice of the chief minister and that the ECP asked the governor to refer to the provincial government on February 3.
“In the letter, the Election Commission also mentioned its difficulties,” Ishaq said.
CJP Bandial said the poll date could only be determined with ground realities in focus. He reiterated the need for setting an election date and added that obstacles could be removed after the date was announced.
The CJP advised that the SC could be approached in case of a significant problem. “Paralyzing the system is not allowed under the Constitution,” he said. He stated that the elections must be held and that the first priority was to follow the Constitution.
Ishaq maintained that the KP governor refused to give election dates, he furthered that the date of the dissolution of the assembly cannot be given on the summary of the chief minister and also added that it was the responsibility of the ECP to fix the date – supporting the AGP’s stance.
Justice Mazhar questioned that if the assembly was dissolved, and a caretaker government was formed, the why did KP governor not announce the date.
After the KP governor’s lawyer completed his arguments, Pakistan People’s Party lawyer Farooq H Naik began his statement.
