On Thursday, Justice Athar Minallah of the Supreme Court asked if the Constitution said that the provincial assemblies of Khyber Pakhtunkhwa and Punjab had been dissolved.
He said these things as the highest court was looking into a “suo moto” notice to find out who has the constitutional responsibility and power to announce the date for elections to a provincial assembly after it has been dissolved.
The case was heard by a panel of nine judges, led by Chief Justice of Pakistan (CJP) Umar Ata Bandial and including Justices Ijazul Ahsan, Syed Mansoor Ali Shah, Munib Akhtar, Yahya Afridi, Sayyed Mazhar Ali Akbar Naqvi, Jamal Khan Mandokhail, Muhammad Ali Mazhar, and Athar Minallah.
The hearing is happening because President Dr. Arif Alvi set April 9 as the election date for both provinces on his own on Monday. He did this because the Election Commission of Pakistan refused to meet with him to talk about the matter (ECP).
“Want the Constitution to be obeyed”
At the start of the hearing, CJP Bandial said that the court had three things to look into and that time was running out for provincial elections.
Here, Barrister Ali Zafar stepped up to the podium and said he wanted to “put things about the president on record.”
The CJP said that Alvi had announced the date for elections under Section 57 (notification of election programme) of the Elections Act, 2017.
Zafar begged, “Our request is also pending, so please listen to us.”
But the chief judge said again that the court had to look into three things. “We need to find out who has the power to set the date for the election after the assemblies have been dissolved.
“The high court’s Feb. 10 order was in front of us,” he said, referring to an order from the Lahore High Court that told the ECP to hold elections right away. CJB Bandial also said that the court had to deal with a lot of things.
At one point during the hearing, the government’s lawyer, Shehzad Elahi, asked the court for more time to work on the case. “If so many people get notices, it will be hard to get ready for the hearing tomorrow,” he said.
At that point, the CJP said that the court would only talk about important things and that the full case hearing would take place on Monday.
He then said that a suo motu notice was given for a number of reasons. “The high court is in the middle of a long case, but time is moving on.”
CJP Bandial said that the Constitution says when elections happen, and he said that the time for elections was coming to an end. “There are ways to get around the high court’s forum if there is an emergency. It was easier for us to schedule hearings for the two petitions that the provincial assembly speakers had filed with the Supreme Court.
“Section 57 is about when elections are held,” he said, noting that the case had brought up a few new points that needed to be explained.
The top judge also said that the Supreme Court will not stand for the Constitution to be broken. “If things are very bad, the time for elections can be pushed back. But we need to find out if the Constitution is being followed.”
“We want the Constitution to be put into place.”
The CJP also pointed out that things changed after President Alvi announced the date of the election. “All the Supreme Court has to do is see what the constitution says and do it.”
He said that the issue of elections needed more explanation and told everyone that the court would listen to their points.
“Our plans for the next week have been changed so that we can hear this case,” CJP Bandial said.
Justice Mandokhail raises questions on suo motu notice
Justice Mandokhail, on the other hand, had some doubts about the CJP’s decision to look into the matter on its own.
“The suo motu notice was taken on the note of Justice Naqvi and Justice Ahsan,” he said, referring to the SC’s proceedings about the transfer of Lahore police chief Ghulam Mehmood Dogar.
Justice Mandokhail said, “In that case, the chief election commissioner, who was not a respondent, was called in.”
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If the Constitution was followed and the KP and Punjab assemblies were dissolved,
During the hearing, the CJP brought up Article 224 of the Constitution, which says that elections should be held within 90 days of the provincial legislature being dissolved.
“The time is going by fast. The high court was considering the case, but no decision was made.”
Here, petitioner and Islamabad Bar Council President Shoaib Shaheen said that it would be good for everyone if a decision about holding elections was made during the suo moto proceedings.
“This is a time-sensitive case that has to do with elections,” he said.
Justice Minallah also said that if the court made such a decision, it would be good for all political parties.
In the meantime, Justice Mandokhail talked about some new recordings in which “Abid Zuberi is talking about some judges,” as he put it. Zuberi was present at the hearing today.
“I don’t think these situations fit into 184 (3),” he said.
Justice Minallah said he was talking about the case’s constitutional question. He said, “The first question would be whether or not the assemblies were dissolved in accordance with the Constitution.”
“The second question is whether 184(3) should be applied to the assembly.”
Justice Akhtar said, “I think all political parties’ points of view should be heard.” “In a democracy, the government is made up of parties.”
AGP Elahi agreed and said that political parties and the government should be able to say what they think about the law, so they could be called.
Then, Justice Minallah said, “This is a big deal because it’s about trust in the courts and how open they are.”
Advocate Azhar Siddique, who has been representing the PTI in different cases, said that records from the High Court should be asked for.
But the chief justice said today that there would only be notices.
Notices were sent
When the petition was sent in by the speakers of the provincial assemblies, the court saw that communication between the election commission and President Alvi had already begun. “The petitions questioned the governors’ decision not to say when the elections would be held.”
Here, the AGP said that representatives of political parties and the government can be called to court to explain their legal positions on the matter.
The top court then sent notices to the president, the ECP, the chief secretaries of the governors of Punjab and KP, the advocate generals of all the provinces, the president of the Supreme Court Bar Council, and the Islamabad Bar Council, telling them to appear in SC on Feb. 27.
The Pakistan Democratic Party (PDM) and the Pakistan People’s Party (PPP) were also asked to help the court.
In the meantime, Justice Minallah asked if the Islamabad High Court Bar Association’s request about the elections had been accepted. Shoaib Shaheen said that the resolution had been approved by a vote of ten to one.
Shaheen said that rules about holding elections would not be against any political party.
Barrister Zafar said that all the people who had responded should first come together and decide if they wanted elections or not.
Here, Justice Akhtar said the issue was the dissolution of the assemblies and how general elections would be held.
“In the suo motu hearing against the speaker’s decision, notices were sent to all the political parties that were in the Parliament. But this case is different from the case where the speaker made the decision,” he said.
The hearing was then put off until 11 a.m. on February 24.
PBC seeks changes in larger bench
Before the hearing, the Pakistan Bar Council (PBC) said that CJP Bandial shouldn’t remove Justice Qazi Faez Isa and Justice Sardar Tariq Masood from the bench that will hear the case to “make the bench look fair and neutral.”
In a press release from PBC Executive Council Chairman Hassan Raza Pasha and Vice-Chairman Haroonur Rashid, the PBC said that they needed to be there so that “the public and lawyers community may not question upon the bench for hearing of [the] important matter in regard to the determination of constitutional responsibility and authority.”
The PBC also asked Justice Naqvi to “voluntarily recuse” himself from the bench, which “propriety demands from him.” Justice Naqvi is one of the two judges that Interior Minister Rana Sanauallah said the PML-N would ask to be removed from cases involving the PML-N leadership.
CJP takes suo motu notice
The top judge took notice on his own Wednesday night of the delay in holding elections in Punjab and Khyber Pakhtunkhwa, saying that there seemed to be a “lack of clarity” about the situation.
In the notice, CJP Bandial said that the SC bench would look at the following questions:
Who has the power and responsibility under the Constitution to set the date for a general election to a provincial assembly when it is dissolved in one of the many ways the Constitution allows?
How and when will this constitutional duty be carried out?
What are the federation and the province’s constitutional duties and responsibilities when it comes to holding the general election?
In his order, the CJP said that there was, in short, a lack of clarity about something that was very important to the Constitution.
The Supreme Court needs to look into and solve the problems right away. The decision was made after a note was given to the CJP in response to an order from February 16 by a two-judge bench asking the chief justice to take a “suo moto” action in this case.
“There are parts of the Constitution and the Elections Act 2017 that need to be taken into account.” 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 citizens who make up the electorates in Punjab and Khyber Pakhtunkhwa to exercise their right to elect representatives of their choice to form new assemblies and the provincial cabinets,” the SC order said.
“This is necessary for the two provinces’ governments to be run in accordance with the Constitution,” said the CJP, adding that these issues also involve the fulfilment of constitutional duties that are very important to the public and call for the Constitution to be faithfully enforced.
“There has been a significant change in the last few days,” the CJP said, adding that it seemed that President Arif Alvi had taken the position that, according to Section 57(1) of the Elections Act, he had the power and responsibility to set a date for the general elections after he had written to the Election Commission of Pakistan.
The order said, “In an order from February 20, the President set April 9, 2023 as the date for general elections in both Punjab and KP and asked the ECP to do what it was required to do by the constitution and the law.”
More than a month has passed since the provincial assemblies were dissolved, and the judge said that it seems at first glance that even the issue of setting a date for general elections, which was the first step towards holding the elections, has not been resolved.
“Constitutional experts seem to have different and maybe even contradictory ideas about the issue. As a result, several federal ministers seem to have questioned the president’s claim to power.” Since ministers are bound by the constitutional rule of collective responsibility, it seems at first glance that this is the view of the federal cabinet as a whole.
“It should also be noted that ECP has been quoted as saying that it was not getting the help and support it needed, especially the money, people, and security it needed to hold the general elections in accordance with the Constitution.”
The CJP said that in the cases of Punjab and KP, the then-chief ministers told their respective governors that the assembly should be dissolved, as required by Article 112(1) of the Constitution.
Putting off voting
The Punjab and KP assemblies, which were run by the PTI, were dissolved on January 14 and January 18, respectively, so that snap elections could be held.
On January 24, the ECP sent letters to the governors of Punjab and KP, asking them to hold elections between April 9 and 13 in Punjab and April 15 and 17 in KP.
At the same time, the PTI went to the LHC on January 27 to ask that the Punjab governor immediately set a date for an election in the province. The court then told the ECP to set an election date right away after consulting with the governor.
On February 8, President Arif Alvi also asked the ECP to “immediately announce” the dates for the elections in KP and Punjab and stop spreading “dangerous speculative propaganda” about both the provincial assembly elections and the general elections.
But so far, the governors of the two provinces haven’t said when the elections will be held. They have given many reasons.
Last week, President Alvi called in Chief Election Commissioner (CEC) Sikandar Sultan Raja for an emergency meeting to talk about election dates. However, the Election Commission of Pakistan (ECP) told him that he had nothing to do with telling provincial assemblies when general elections would be held, as this was the commission’s constitutional duty.
So, on Monday, the president decided on his own that general elections for the Punjab and KP assemblies would be held on April 9.
His political opponents were very angry about this move. They said he was acting like a PTI worker, while the ECP said it wouldn’t announce the election schedule until the “competent authority” set the date.
