ISLAMABAD: The Supreme Court on Tuesday directed the PTI and ruling coalition parties to hold a consultation and come up with a date for elections in Punjab and Khyber Pakhtunkhwa, ARY News reported.
The apex court passed these directives during the hearing of suo motu proceedings regarding the delay in Punjab and Khyber Pakhtunkhwa (KP) polls.
A five-member bench headed by Chief Justice Umar Ata Bandial and comprising Justice Munib Akhtar, Justice Muhammad Ali Mazhar, Justice Shah and Justice Mandokhail is hearing the case.
The SC directed PTI leaders Shireen Mazari, Fawad Chaudhry and coalition partners’ to consult with their leaders and update the court by 4pm.
Today’s hearing
At the outset of the hearing, Attorney General for Pakistan (AGP) Barrister Shehzad Ata Elahi raised an objection on the Supreme Court Bar Association President Abid Zuberi, saying that his name had been removed from the judicial order.
“What is written in the court is not part of a judicial order,” CJP Bandial remarked.
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.
“Presidents and governors were bound to follow the Cabinet’s advice as per the Constitution,” he remarked.
“Can the president or governors give the election date on their own,” he inquired.
“President is bound to consult with Election Commission of Pakistan (ECP) on election dates,” Zuberi argued.
At this, Justice Mansoor Ali Shah said: “President can only take decisions as head of State”.
Here, 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 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 Mandokhail maintained that under Article 48 of the Constitution, every act and action of the president was bound to be on the recommendation of the government.
At this 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.
Here, the CJP Bandial then asked who the governor must consult for announcing poll dates. Zuberi stated that the consultation could only be done with the ECP.
The CJP questioned if the SCBA president was claiming that the incumbent government was not fulfilling its constitutional responsibility.
“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.
At one point, Justice Mazhar said that “if president could not announce the date for elections then what is the need for Section 57(1)?”, adding that the law should then be struck out.
“In your opinion who should announce the election date as per Constitution”? The CJP inquired attorney general.
“Only ECP can announce the election date,” the AGP replied.
“President could only announce the date for elections when the National Assembly was dissolved. In the second situation, the president can only give the date when general elections are being held,” the AGP told the court.
The AGP continued giving arguments and said, “The Constitution is supreme and it doesn’t allow the president to announce a date of election.”
“Lahore High Court had clearly stated that conducting the elections and announcing a date is ECP’s role”.
At this, Justice Akhtar said that the ECP has to decide a date for the election and the governor has to announce it.
After the AGP concluded his arguments, ECP lawyer Sujeel Shehryar Swati presented his arguments and maintained that only ECP could announce the date of by-elections,
“The Election Commission operates according to the Constitution and the law,” Swati said and added according to the Constitution, the governor should provide the date of the provincial elections.
The hearing will resume at 4pm.
Last hearing
At the outset of the hearing on Monday, Justice Bandial observed that four members of the bench had shown grace and disassociated themselves from hearing. “The remaining bench, however, will continue hearing the case,” he added.
He noted that Justice Mandokhail’s dissenting note was shared on social media before the written order was released. “We will be careful that this does not happen in the future,” said the CJP.
Read More: PUNJAB, KP ELECTIONS: FOUR JUDGES RECUSE FROM HEARING SUO MOTO NOTICE
During the hearing, CJP Bandial pointed out that the parliament has clearly written in the Elections Act, 2017, that the president can announce the date for polls.
‘Who appoints the governor?’
During the hearing, Barrister Ali Zafar informed the court that the Punjab governor had declined to propose a date for the election on the grounds that he had not dissolved the assembly.
As per the constitution, the lawyer noted, it is compulsory to hold elections within 90 days of the dissolution of the assemblies and no constitutional representative can delay the polls further.
Justice Muhammad Ali Mazhar remarked that the governor had thrown the matter into the court of Election Commission of Pakistan (ECP), asking who appoints the governor? To which, Barrister Zafar said a governor was appointed with the consent of the president.
The lawyer further said that the meeting between the governor and the ECP team that was held on the directions of Lahore High Court (LHC) had ended without any conclusion.
“The president unilaterally announced the election date while analysing the whole situation”, he added. Barrister Zafar said that the ECP also did not comply with the court’s orders of holding elections in Punjab.
The lawyer explained that it was said that the date for elections could only be decided after discussion with the governor. Barrister Zafar contended that the ECP was bound to hold polls under Articles 108 and 109 of the Constitution.
“However, the ECP said that no outcome came out of the meeting with the governors,” he maintained, adding that the details of the meeting were published by a newspaper. “This means the court orders were violated,” the court asked.
‘Who will give elections date’
At one point, Justice Shah remarked that the president’s letter to election commission was contrary to the high court’s order. “The court asked ECP to announce date after consultations with the governor. But the president sought asked the ECP to announce a date,” he said.
Here, Justice Mazhar pointed out that the ECP had written in its letter that consultation with the governor was not in the Constitution. “If consultations can’t be held, then the electoral body should have given a date itself,” he added.
To which, Justice Shah said that as per his understanding, the ECP was saying that the Constitution does not included consultations over the elections date. “But the high court asked it to consult with the governor.”
However, Barrister Zafar termed the move “delaying tactics”, stressing that it was ECP’s constitutional duty to give a date for elections. To which, Justice Mandokhail stated: “The question in the suo motu case is that who will give the date for elections.”
The lawyer noted 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.” 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.
Meanwhile, Justice Shah asked who issues the notification of the assembly’s dissolution. To which, Barrister Ali Zafar responded that the Election Commission of Pakistan (ECP) had issued the dissolution notice.
Suo motu notice
Last week, the apex court took suo motu notice of the delay in holding polls in Punjab and Khyber Pakhtunkhwa.
In the notice, CJP Bandial said that the SC bench would consider who is eligible to issue the date for polls, the constitutional responsibility of Centre and provinces, and who will fulfil the constitutional responsibility of conducting elections and when.
In his order, CJP Bandial said that the president had taken the position that he had the authority and responsibility for fixing a date, and had announced that polls would be held on April 9.
“It seems prima facie that even the matter of appointing the date of the general elections, which is the first step towards the holding of the elections, has still not been resolved,” he said.
In light of the above, the CJP said: “I am of the view that the issues raised require immediate consideration and resolution by this court. Several provisions of the Constitution need to be considered, as also the relevant sections of the Elections Act”.
President fixes election date
The CJP took notice after President Dr Arif Alvi announced April 9 as the date for holding general elections for Punjab and Khyber Pakhtunkhwa (KP) assemblies.
In a letter written to Chief Election Commissioner (CEC) Sultan Sikandar Raja president Arif Alvi said the constitution does not allow to exceed 90 days for holding elections after the dissolution of assemblies and he has taken the oath to defend and protect the constitution.
Punjab and KP assemblies were dissolved on Jan 18 and Jan 14, respectively, after former prime minister Imran Khan had announced to dissolve assemblies in an attempt to force the government to hold snap polls.
As per the Constitution of Pakistan, polls need to be held for the dissolved assemblies in 90 days.
Raja Mohsin Ijaz is ARY News' Special Correspondent covering Foreign & Diplomatic Affairs from Islamabad
 on Tuesday resumed hearing of suo motu proceedings regarding the delay in Punjab and Khyber-Pakhtunkhwa (KP) elections){kind=link}