{"id":516,"date":"2023-02-28T15:06:32","date_gmt":"2023-02-28T15:06:32","guid":{"rendered":"https:\/\/nayaujala.com\/english\/?p=516"},"modified":"2023-02-28T15:06:32","modified_gmt":"2023-02-28T15:06:32","slug":"sc-sou-motu","status":"publish","type":"post","link":"https:\/\/nayaujala.com\/english\/sc-sou-motu\/","title":{"rendered":"KP, Punjab elections: SC to announce verdict tomorrow after parties wrap up arguments"},"content":{"rendered":"

[social_warfare buttons=”Facebook,Twitter”]The Supreme Court will announce at 11am tomorrow (Wednesday) its verdict in the suo motu proceedings regarding the delay in the announcement of a date for elections in Punjab and Khyber Pakhtunkhwa, both of which have been under caretaker governments since the provincial assemblies were dissolved in January.<\/strong><\/p>\n

The apex court reserved its judgment today after hearing all the parties \u2014 including the counsels of the ruling coalition, the PTI, the president and others \u2014 over two days.<\/p>\n

Earlier in the day, the court gave PTI and the coalition government until 4pm to sit together and come up with election dates in Khyber Pakhtunkhwa and Punjab. However, a mutually agreed upon solution was not found, with PML-N counsel telling the court that more time was needed for consultations on the matter.<\/p>\n

Mansoor Usman Awan, who represented the PML-N in the case, told the five-member SC bench that the PDM coalition has members from Balochistan, whereas the PML-N will also have to hold internal discussions as well as consult with the PPP.<\/p>\n

\u201cThe court proceedings should continue as more time is needed for consultations,\u201d he told the court.<\/p>\n

Meanwhile, PPP lawyer Farooq H. Naek reported back that consultations were held with the PPP leadership. \u201cThe [party] leadership said that \u2018giving the election date is not the job of political parties.\u2019\u201d<\/p>\n

Earlier, the court had adjourned the hearing until 4pm, with instructions for the political parties to decide on a date.<\/p>\n

\u201cEven if we take a decision [on the matter], the litigation will continue and this will be very costly for the public and political parties,\u201d Chief Justice of Pakistan (CJP) Umar Ata Bandial remarked as he passed the directives to the lawyers to speak to respective party heads.<\/p>\n

The instructions were issued after a five-member bench resumed hearing the apex court\u2019s suo motu proceedings regarding the delay in the provincial polls.<\/p>\n

The top judge had yesterday split a larger bench into a five-member bench to conduct the proceedings. He also indicated that they would like to conclude the matter by today.<\/p>\n

The judges hearing the case today are CJP Bandial, Justice Shah, Justice Munib Akhtar, Justice Mandokhail, and Justice Muhammad Ali Mazhar.<\/p>\n

Those who dissociated themselves from the hearing include Justice Ijazul Ahsan, Justice Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Minallah.<\/p>\n

During today\u2019s hearing, Barrister Ali Zafar, Attorney General for Pakistan (AGP) Barrister Shehzad Ata Elahi, Supreme Court Bar Association President Abid Zuberi, JUI-F lawyer Kamran Murtaza, PPP lawyer Farooq H. Naek and President Arif Alvi\u2019s lawyer Salman Akram Raja were present in court.<\/p>\n

Giving election date without advice was unconstitutional: PPP counsel<\/strong><\/p>\n

Once the hearing resumed following the break for court ordered consultation, the PPP counsel said the president had given the election date without the prime minister\u2019s advice. \u201cThe president did not even consult with the ECP. Giving the date of election without the advice was unconstitutional.\u201d<\/p>\n

Justice Akhtar asked the PPP lawyer who would advise the president if the assembly completed its term, adding that elections were mandatory within two months once the assembly completed its term.<\/p>\n

The judge also said that it was the president\u2019s discretion to ask the prime minister to seek a vote of confidence, adding that no summary was needed for it.<\/p>\n

At one point in the hearing, CJP Bandial remarked, \u201cIn the current situation, elections are necessary in 90 days,\u201d noting that the Peshawar High Court had taken two weeks to issue a notice while the matter was also pending in the Lahore High Court.<\/p>\n

\u201cToday is the second day [of this case] in the Supreme Court and the case is almost over,\u201d the CJP said, adding that the court was supporting the Constitution instead of any party.<\/p>\n

To this, Naek said that the apex court could order the high courts to expedite their decision making.<\/p>\n

Meanwhile, Justice Akhtar reiterated that giving the election date was indeed the president\u2019s discretion, and that the president should move immediately after the completion of the assembly\u2019s tenure.<\/p>\n

Election Act empowers president to announce election date: counsel<\/strong>
\nPresident Arif Alvi\u2019s lawyer, Salman Akram Raja, maintained that the president was given the right to announce the election date in the Elections Act on the basis of the Constitution.<\/p>\n

\u201cThe president and the governor do not need an advice to give the election date. The president also has the authority to give the election date for the provincial assemblies,\u201d Raja asserted.<\/p>\n

When Justice Shah asked why the president had issued a date for polls despite the LHC\u2019s order directing the ECP to do so, Raja replied that President Alvi was not a party in the high court case.<\/p>\n

He argued that the LHC\u2019s judgement did not have a reference to Section 57 of the Elections Act. \u201cThe president was given the legal advice to exercise his constitutional authority as the KP governor was not exercising his authority to give the date,\u201d Raja added.<\/p>\n

However, Raja said that the president has since realised that he should not have given a date for the election in KP. \u201cThe president had no authority to give a date for the KP election and will review his decision.\u201d<\/p>\n

\u201cThe president acknowledges that the KP assembly was dissolved by the governor, and so issuing the date of the elections in KP is the right of the governor,\u201d he said.<\/p>\n

At this, Justice Mazhar asked him why the president had not yet withdrawn the advice, to which Raja said Alvi would do so soon.<\/p>\n

Suo motus should be taken in certain circumstances only: CJP<\/strong>
\nAt one point in the hearing, the chief justice commented on suo motu notices taken by the apex court. \u201cOnly in certain circumstances does the court take suo motu notice,\u201d he said, adding that in the past year or two, including 2023, only a single suo motu notice was taken.<\/p>\n

\u201cEveryone agrees that under Article 224, elections are required in 90 days. The court is ascertaining that from whom the election date should come from. It has to be determined who will give the election date in the future,\u201d CJP Bandial said, adding that the court only wanted to shed light on the law.<\/p>\n

\u201cThe court is not giving or taking anything from anyone,\u201d he said, to which Naek responded: \u201c[We] are grateful to the court for restraint in judicial activism.\u201d<\/p>\n

\u2018Democracy calls for consultation\u2019
\nDuring the hearing, CJP Bandial stated that none of the institutions, other than the court, had the authority to extend elections further than 90 days.<\/p>\n

\u201cAnd the court can only pass these orders on concrete grounds,\u201d he maintained, recalling that economic difficulties were also brought up during the 1988 presidential reference.<\/p>\n

\u201cArticle 254 puts a curtain on the delay in time for elections,\u201d the apex judge observed.<\/p>\n

Article 254 of the Constitution states: \u201cWhen any act or thing is required by the Constitution to be done within a particular period and it is not done within that period, the doing of the act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period.\u201d<\/p>\n

Constitution didn\u2019t give a \u201clicense to delay polls further than 90 days\u201d:CJP<\/strong><\/p>\n

The CJP asserted that the said provision of the Constitution didn\u2019t give a \u201clicense to delay polls further than 90 days\u201d, adding that the law could only be invoked during a natural calamity or war.<\/p>\n

\u201cIf elections are not held on time, uncertainty will prevail,\u201d he said.<\/p>\n

CJP Bandial went on to say that the court did not have any doubts about the good intention of the government. \u201cIt is for the first time that the containers are standing but there is no foreign exchange.\u201d<\/p>\n

\u201cDemocracy calls for a date of elections to be decided amiably,\u201d Justice Shah remarked, adding that the purpose of democracy lay in the act of one party displaying flexibility.<\/p>\n

\u201cKeep legal issues aside and think of the country. If you put Pakistan first, you will find the solution,\u201d the judge said.<\/p>\n

Justice Mandokhail concurred, saying that the real solution was in consultations.<\/p>\n

The court then instructed the lawyers to consult with their respective parties about the date for elections and inform the court by 4pm.<\/p>\n

The CJP said that the court wanted to wrap up the proceedings today. \u201cOur entire work is on halt because of this case,\u201d he added and adjourned the hearing.<\/p>\n

SCBA president presents arguments<\/strong>
\nAt the outset of the hearing today, AGP Elahi objected to the exclusion of Supreme Court Bar Association President Abid Zuberi from the previous order \u2014 arguing that the court recognises it as an institution.<\/p>\n

The chief justice responded that only when judges sign an order does it become a ruling, and Zuberi was allowed to present his arguments.<\/p>\n

At one point during the hearing, Justice Mandokhail wondered if the governors and president were bound by the advice of the cabinet in the matter. \u201cCan they give the date for elections on their own?\u201d<\/p>\n

Here, the top judge observed that the governor was not bound by anyone\u2019s advice on the appointment of the caretaker government and the date for elections.<\/p>\n

\u201cWhere there is a discretionary authority, there is no need for advice,\u201d Justice Mazhar also remarked.<\/p>\n

The CJP then asked: \u201cWho can issue the notification for the dissolution of assemblies?\u201d<\/p>\n

Zuberi replied that the notification of the Punjab Assembly\u2019s dissolution was issued by the law secretary.<\/p>\n

At that, the AGP interjected, saying that Zuberi was the petitioner\u2019s lawyer and could not represent the bar council. However, Zuberi contended that he was a \u201cbar lawyer and not of a political party\u201d.<\/p>\n

\u201cSC had declared in the past that elections are to be held within 90 days,\u201d Zuberi said, continuing his arguments.<\/p>\n

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.<\/p>\n

\u201cWill the current government or the previous government call for the announcement of the elections?\u201d he asked.<\/p>\n

\u201cThis means that the announcement of the date for elections will be on advice,\u201d the chief justice then observed.<\/p>\n

\u201cBut the governor has the right to dissolve the assemblies,\u201d Zuberi argued, explaining that there were four ways of dissolving assemblies in the Constitution.<\/p>\n

\u201cWho will issue the notification for the dissolution of assemblies,\u201d the CJP reiterated.<\/p>\n

Zuberi replied that the governor had to issue the notification on the advice of the chief minister. \u201cIf the governor does not sign [on the CM\u2019s advice], then the assembly automatically dissolves within 48 hours.\u201d<\/p>\n

The lawyer went on to say that in this case, the notification for the dissolution was issued by the law secretary and not the governor.<\/p>\n

Here, Justice Akhtar said that the caretaker government is formed seven days after the dissolution. He also stated that there needed to be harmony among the different clauses of the Constitution.<\/p>\n

Justice Mandokhail noted that the government could still ask the governor for elections today as per the Constitution.<\/p>\n

\u201cHow can the governor refuse if advice [on the date of elections] comes from the government,\u201d Justice Shah said.<\/p>\n

Meanwhile, Justice Mazhar stated: \u201cThe primary question is also that the governor is saying he did not dissolve the assembly.\u201d<\/p>\n

Zuberi contended that the mention of the announcement of the date for elections was only in Article 105(3) of the Constitution \u2014 which states that the governor shall act on and in accordance with the advice of the chief minister.<\/p>\n

Justice Mandokhail remarked that there was no restriction on the government regarding the announcement of the date for polls.<\/p>\n

\u201cBut the government hasn\u2019t announced the date for so long,\u201d Zuberi pointed out.<\/p>\n

Here, the CJP asked: \u201cAre you trying to say that the government is not fulfilling its Constitutional responsibility?<\/p>\n

\u201cHolding elections within 90 days [of the dissolution] is in the spirit of the Constitution,\u201d he maintained, adding that the bench will ask the AGP to assist the court on this matter.<\/p>\n

On the other hand, Zuberi continued that if the assembly breaks under the pressure of time, then the president was supposed to give the election date. \u201cI am of the opinion that giving the date for elections is the authority of the president of the country.\u201d<\/p>\n

At one point, Justice Shah asked: \u201cIs the governor still bound to give the election date if the Election Commission of Pakistan shows the incapacity to conduct the polls.\u201d<\/p>\n

Zuberi replied that the governor had to give a date, irrespective of the situation.<\/p>\n

Justice Mazhar observed that the governor had no authority not to give a date for polls but added that the governor had to give the date keeping in mind the decisions of the electoral body.<\/p>\n

Subsequently, Justice Shah asked: \u201cCan the president take a decision without the advice of the cabinet?\u201d<\/p>\n

Justice Mandokhail reiterated that the powers of the president were clear in the Constitution. \u201cThe president is bound to take advice for everything.\u201d<\/p>\n

Here, Zuberi objected. \u201cThe president is not obliged to seek advice. He can exercise every power that is given by law. The president and governors are only bound to consult with the ECP on the date of elections,\u201d he stated.<\/p>\n

However, Justice Shah stressed that the president, as the head of the state, could only take decisions on advice.<\/p>\n

Justice Mandokhail also said that the powers of the president were not directly stated in the Constitution. \u201cIf there are no powers in the Constitution, then action will be taken under the law. And the law comes from the Constitution.\u201d<\/p>\n

Justice Shah asked: \u201cUnder which law is the president writing letters?\u201d<\/p>\n

For his part, Zuberi said that the president had sent the letters to the ECP for consultation but the judge contended that the Constitution did not talk about any dialogue.<\/p>\n

\u201cLet\u2019s suppose that we believe that the law gives the president permission [to announce the date for elections] \u2026 but even then he is bound by the advice,\u201d Justice Mandokhail observed.<\/p>\n

\u201cThe caretaker government can also ask to give a date,\u201d Justice Shah said.<\/p>\n

Here, the CJP said that the court will decide whether the president needs to consult with the government after listening to arguments from the other side.<\/p>\n

AGP\u2019s arguments<\/strong>
\nThe attorney general argued that it was a different argument as to who could take the polls ahead of 90 days. To this, Justice Shah asked if the ECP could extend the date of elections given by the governor.<\/h4>\n

\u201cIf the governor asks for election on the 85th day, then the ECP can give the date for the 89th day,\u201d AGP Elahi responded.<\/p>\n

At this point, the CJP said: \u201cThis is the reason why the governor is bound to consult with the ECP. Whether it is the governor or the president, everyone is bound by the law and Constitution.\u201d<\/p>\n

Commencing his arguments in the case, the AGP said that the president could only announce the date for elections when the National Assembly was dissolved. \u201cIn the second situation, the president can only give the date when general elections are being held.\u201d<\/p>\n

Here, the CJP pointed out that there was a difference between the discretionary and advisory powers of the president.<\/p>\n

AGP Elahi also stated that if the governor asked for elections a day after the dissolution of the assembly, the ECP would not agree, adding that elections should be held within 90 days and not extended beyond that.<\/p>\n

\u201cThe governor also has to take into consideration the Election Act, 2017,\u201d Justice Akhter added.<\/p>\n

Subsequently, the hearing was adjourned for half an hour.<\/p>\n

When the proceedings resumed, the AGP stated that the ECP was an independent institution and its responsibility was to hold polls.<\/p>\n

\u201cThe position of the Punjab governor is that the ECP should announce the date for elections itself,\u201d he contended, elaborating that in his intra-court appeal in the Lahore High Court, the governor had said that consultation with him on the matter was not required.<\/p>\n

\u201cHowever, the ECP is of the stance that how can it give a date for elections itself,\u201d the attorney general told the court.<\/p>\n

Here, CJP Bandial said: \u201cI don\u2019t understand why a 14-day time was sought from the high court. As the attorney general, you were fully prepared as this case started.<\/p>\n

\u201cWhat were the points for which the lawyer [in the LHC] needed 14 days to prepare? In the high court, the matter should have been fixed for hearing on a daily basis.\u201d<\/p>\n

At one point, Justice Mazhar stated that the president had used Section 57(1) of the Election Act, 2017 \u2014 which says that the president shall announce the date or dates of the general elections after consultation with the ECP \u2014 for the announcement of the date of polls.<\/p>\n

\u201cIf the president has no power [to announce the election date], then this means that Section 57(1) is ineffective,\u201d he observed, adding that the law should then be struck out.<\/p>\n

The AGP said that in his opinion, the electoral watchdog could give the date for elections.<\/p>\n

\u201cIf the ECP has to announce the date, then there is no need for consultations with anyone,\u201d Justice Mandokhail said.<\/p>\n

However, Justice Akhtar said that the purpose of the Constitution and law needed to be understood. \u201cIf the ECP has to announce the date for elections, then where is the role of the governor and the president?\u201d<\/p>\n

At that, CJP Bandial stressed that the role of the election commission was important in any situation. \u201cAccording to you, the role of the ECP is final.\u201d<\/p>\n

Meanwhile, AGP Elahi contended that the interpretation of the Constitution could not be done in the Parliament, asserting that the \u201cConstitution is supreme\u201d.<\/p>\n

\u201cThe Constitution does not give the president permission to decide on a date for elections,\u201d he said. \u201cHe can only announce the date.\u201d<\/p>\n

The LHC, the attorney general continued, had clearly stated that holding elections and deciding their date was the authority of the ECP. \u201cElections are the subject of the federal [government],\u201d he added.<\/p>\n

Justice Mandokhail then said: \u201cWhat is the point of arguing when everything is clear?\u201d<\/p>\n

Separately, the CJP reiterated that intra-court appeals in the LHC were being delayed for 14 days. \u201cWhy are such lengthy adjournments being given on important constitutional matters?<\/p>\n

\u201cUnder which provision of the Constitution does ECP have the right to decide on the date for elections?\u201d the top judge asked.<\/p>\n

On the other hand, the AGP said that the president had given the date for elections on Feb 20.<\/p>\n

\u201cIf the election programme is followed, it is impossible to hold polls within 90 days,\u201d he told the bench, highlighting that in Punjab, the 90-day time will end on April 14.<\/p>\n

\u201cProvincial general elections are not possible before April 25,\u201d AGP Elahi added.<\/p>\n

\u201cWhere there is a will, there is a way,\u201d Justice Akhtar said here.<\/p>\n

\u201cIf the ECP and concerned authorities wanted, they could have found a solution. According to the law, 28 days are required for the election campaign,\u201d he maintained, adding that the campaigning time could be reduced within the 90-day period.<\/p>\n

For his part, the AGP said that time was needed for printing ballot papers, adding that the time for campaigning could be reduced to two weeks.<\/p>\n

Justice Akhtar stressed that the implementation of the Constitution was more important. \u201cWith the extension of two to four days [in the 90-day period of holding elections] Article 254 may be applied,\u201d he said.<\/p>\n

However, the AGP asked that if it was compulsory to hold the polls within 90 days, then were the 1988 elections questionable.<\/p>\n

\u201cThe elections in 2008 were also held after the stipulated period of time,\u201d he pointed out.<\/p>\n

To this, Justice Mandokhail said: \u201cThe first question is who will give the date for elections. The rest of the things will be discussed after that.<\/p>\n

\u201cWe wouldn\u2019t be standing here today if the law had been clear on giving the date of elections,\u201d he added.<\/p>\n

At one point during the hearing, the apex judge said that the Elections Act, 2017, cannot supersede the Constitution.<\/p>\n

The AGP contended that the President\u2019s authority could not be inconsistent with the ECP.<\/p>\n

\u201cAs the attorney general, you are talking against the Constitution instead of defending it,\u201d Justice Akhtar said.<\/p>\n

Justice Mazhar also pointed out that if Section 57(1) was struck off from the Constitution, it would be impossible to hold elections.<\/p>\n

\u201cBut in the present situation, the ECP should announce the election date,\u201d AGP Elahi said. \u201cThe ECP can also say that elections are not possible till April 14.\u201d<\/p>\n

The electoral watchdog, he continued, was empowered to take a decision with concrete reasons. \u201cNo one has given a date yet, everything is in the air right now.\u201d<\/p>\n

Here, Justice Mandokhail said: \u201cWhere did the ECP get the authority to delay [elections] beyond 90 days? The entire dispute is about holding the polls within 90 days.\u201d<\/p>\n

The attorney general replied that support could be taken from Article 254 on concrete reasons to which Justice Mazhar asked how could Article 254 be invoked without the announcement of the election date.<\/p>\n

Meanwhile, the CJP said: \u201cIf the law is not clear, how can we say that ECP is at fault?\u201d<\/p>\n

The AGP replied that the court could grant permission if the elections are delayed beyond 90 days.<\/p>\n

\u201cDo not think that the court will amplify anything that this unconstitutional,\u201d the CJP asserted, stressing that Article 254 will only be used where it can be applied.<\/p>\n

Justice Mazhar then said that the ECP had suggested election dates to the governors of KP and Punjab.<\/p>\n

Justice Mandokhail asked if the caretaker cabinet could send a summary to the governor to which the AGP replied that both the governor and the cabinet were bound by the Constitution.<\/p>\n

\u201cThe caretaker cabinet can not send a summary for the election date,\u201d he added.<\/p>\n

Justice Mazhar then inquired how long could the president wait if the prime minister does not send advice on a matter.<\/p>\n

\u201cSeveral laws have been formed within hours, they could have formed a law today too and handed over the responsibility,\u201d Justice Mandokhail remarked.<\/p>\n

AGP Elahi said that several questions were already being raised on the legislation by the current Parliament. He went on to say that the ECP should give a date for elections.<\/p>\n

\u201cThe 90-day time is reaching a close \u2026 I am not doubting the intention of the ECP, but the electoral body cannot escape from its responsibility,\u201d the attorney general said and concluded his arguments.<\/p>\n

ECP\u2019s arguments<\/strong>
\nSubsequently, ECP lawyer Sajeel Sheryar began presenting his arguments. He said that the electoral watchdog has to work according to the Constitution.<\/p>\n

\u201cThe ECP can give three types of dates \u2014 for the senate elections, presidential elections and by-elections,\u201d he told the court, highlighting that here the matter of polls in only KP and Punjab was under discussion.<\/p>\n

\u201cOur stance from the first day is that the date for the elections has to be announced by the governor,\u201d Sheryar said.<\/p>\n

Here, the CJP maintained: \u201cThe chief minister\u2019s advice to dissolve the assembly has its own effect because even if the governor doesn\u2019t sign [the summary], the assembly will automatically dissolve.\u201d<\/p>\n

\u201cSo you\u2019re saying that whether the governor dissolves the assembly or not, he has to give the date for elections,\u201d Justice Mandokhail asked the ECP lawyer.<\/p>\n

Sheryar replied that the governor of Punjab says he did not dissolve the assembly.<\/p>\n

\u201cIs he [the governor standing by his stance even today?\u201d Justice Mazhar inquired.<\/p>\n

\u201cWe had even written a letter to him suggesting elections dates between April 9 and April 13,\u201d the lawyer responded.<\/p>\n

At that, the CJP asked if the government gave the date for elections \u201cblindly\u201d or held consultations on it. \u201cWhat does the governor know about the ECP\u2019s schedule? Did he call you [the ECP] for discussion or not?\u201d<\/p>\n

Sheryar responded that the governor\u2019s consultation with the ECP was not a requirement.<\/p>\n

Meanwhile, Justice Mandokhail\u2019s said that the governor\u2019s responsibility was decided if the assembly should be dissolved or not.<\/p>\n

\u201cThe governor says that if didn\u2019t dissolve the assembly why should he give a date for elections,\u201d Justice Mazhar added.<\/p>\n

For his part, the ECP lawyer stated that in the electoral body\u2019s view, the governor\u2019s stance was incorrect, explaining that the watchdog had suggested the poll dates to the governor keeping the election schedule in mind.<\/p>\n

At that, Justice Mazhar recalled that the LHC instructed the governor and ECP to meet and give a date for elections after consultation.<\/p>\n

\u201cOn the court\u2019s orders, the ECP met the governor,\u201d Sheryar said.<\/p>\n

On the other hand, Justice Bandial asked if the ECP had also met the KP governor for the poll date to which Sheryar said that a reminder was also sent to the former.<\/p>\n

\u201cThe Peshawar High Court (PHC) is also just issuing notices,\u201d CJP Bandial noted.<\/strong><\/p>\n

Justice Mazhar said here that all the institutions were bound to help the ECP when it came to elections.<\/p>\n

At that, the ECP lawyer said that the KP governor did not give a date for elections and instead suggested the body consult with other stakeholders.<\/p>\n

\u201cStakeholders should be consulted as per the KP governor\u2019s order and a date for elections should be fixed,\u201d CJP instructed the watchdog, adding that holding elections was the ECP\u2019s responsibility.<\/p>\n

\u201cThe ECP should have had completed all the preparations and reached out to the governor again,\u201d the apex judge stated.<\/p>\n

Justice Mazhar also wondered why the ECP \u201cshies away\u201d from consultations. \u201cWhy did you file an intra-court appeal,\u201d he asked the body\u2019s lawyer to which the latter replied that the appeal was submitted on legal grounds.<\/p>\n

\u201cDo you need a court order to consult with the governor?\u201d the CJP then asked. \u201cCan the ECP not go to the governor itself?\u201d<\/p>\n

Sheryar said that there were \u201csome hindrances\u201d that the court was already told about.<\/p>\n

\u201cYou have to hold consultations yourself \u2026 do whatever you have to,\u201d Justice Mandokhail said.<\/p>\n

The court then called the KP governor\u2019s lawyer to the rostrum and asked: \u201cWhat is the meaning of the Jan 31 letter of the KP governor?\u201d<\/p>\n

The lawyer replied that the provincial assembly was dissolved on the advice of the chief minister and that the governor exercised no powers in the matter.<\/p>\n

\u201cWhen the caretaker government was formed by the governor, why did he not give a date for elections,\u201d Justice Mandokhail asked.<\/p>\n

At that, the CJP said that the governor and the ECP will be asked why a date for elections was not given.<\/p>\n

For his part, the advocate general of KP said that the province was undergoing a financial crisis.<\/p>\n

Here, Justice Mandokhail said: \u201cAt least give a date for elections \u2026 it is possible that the situation will get better and funds will be released.\u201d<\/p>\n

The advocate general replied that the ECP had asked for Rs60 billion for elections in both Punjab and KP. \u201cBut the question is whether the governor can interfere with the jurisdictional authority or not,\u201d he added.<\/p>\n

Government lawyer presents arguments<\/strong>
\nSubsequently, the court called the coalition government\u2019s lawyer to the rostrum.<\/p>\n

The PPP lawyer said that if elections were held, the ruling parties would participate in them to which the CJP said that the court\u2019s \u201cutmost priority is to follow the Constitution\u201d.<\/p>\n

\u201cThe Constitution cannot be abrogated,\u201d the top judge remarked, adding that the ECP \u201cis quiet behind letters\u201d.<\/p>\n

Naek then told the court that the coalition government had withdrawn its petition seeking a full court bench for the suo motu hearing. \u201cWe want the five-member bench reconstituted by the CJP to hear the case.\u201d<\/p>\n

He then continued his arguments, saying that there was no interpretation regarding who could approach the SC under Article 184(3) of the Constitution \u2014 which talks about the jurisdiction of the apex court.<\/p>\n

\u201cAs per the Constitution, the governor has a 90-day period to give a date for elections,\u201d he said, noting that the Punjab Assembly was automatically dissolved [because the governor had refused to sign the CM\u2019s summary].<\/p>\n

The KP governor, on the other hand, has time till April 17 to give a date for elections, Naek told the court.<\/p>\n

\u201cHow can elections be held within 90 days then,\u201d Justice Akhtar asked here. \u201cHow will Article 224 be implemented?\u201d<\/p>\n

The lawyer said that he would talk about the aforementioned point later.<\/p>\n

\u201cThe Constitution is silent on the date of elections if an assembly is dissolved automatically,\u201d Naek went on to say, adding that the matter was subject to the Elections Act, 2017.<\/p>\n

\u201cTell us about that part of the Constitution which talks about the absence of funds,\u201d Justice Shah instructed the lawyer.<\/p>\n

\u201cThe Constitution is silent on the economic situation and funds,\u201d Naek replied.<\/p>\n

Last hearing<\/strong>
\nAt the outset of the hearing on Monday, Justice Bandial observed that four judges graciously disassociated themselves from the bench to avoid wasting time on trivial matters, so that the case could proceed strictly in accordance with the Constitution.<\/p>\n

The CJP also regretted that scurrilous allegations have been hurled, but two members said they would not sit on the bench whereas two judges expressed their opinion on the maintainability of the case. About Justice Mandokhail\u2019s note, the CJP regretted that the note was forwarded before the court order was signed and uploaded on the website.<\/p>\n

In his additional note, Justice Shah mentioned the controversy in the public domain generated by the audio leaks relating to one of the members of the bench and, despite requests from within and outside the court, he noted there had been no institutional response to the allegations by this court or by the constitutional forum of the Supreme Judicial Council (SJC). Furthermore, there is news of references being filed against the member before SJC by the bar councils.<\/p>\n

During the hearing, 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.<\/p>\n

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.<\/p>\n

\u201cFirst, have the intention to work,\u201d 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.<\/p>\n

\u201cIn any case, elections are not possible before April 25,\u201d Elahi added.<\/p>\n

Justice Mandokhail pointed out that the Supreme Court Bar elections were held on time in 2005 despite the earthquake.<\/p>\n

Coalition seeks full court for suo motu case<\/strong>
\nOn Saturday, the coalition government had petitioned the Supreme Court for the formation of a full court \u2014 comprising all judges except Justice Ahsan and Justice Naqvi \u2014 to conduct the suo motu proceedings.<\/p>\n

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 \u201cin the best interest of justice and to strengthen the people\u2019s confidence in the Supreme Court\u201d.<\/p>\n

It is imperative that the full court \u2014 minus the two judges, who have already disclosed their minds in the matter \u2014 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.<\/p>\n

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\u2019s Feb 16 order, it would amount to a violation of Article 10A if they remain part of the larger bench.<\/p>\n

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.<\/p>\n

According to the petition, these circumstances have raised several questions of immense legal, constitutional and public importance as recorded in the CJP\u2019s note while invoking suo motu jurisdiction.<\/p>\n

Suo motu notice
\nLast 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 \u201clack of clarity\u201d on the matter.<\/h3>\n

In the notice, CJP Bandial said that the SC bench would consider the following questions:<\/p>\n

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?
\nHow and when is this constitutional responsibility to be discharged?
\nWhat are the constitutional responsibilities and duties of the federation and the province with regard to the holding of the general election?
\nIn his order, the CJP observed that there was, to put it shortly, a lack of clarity on a matter of high constitutional importance.<\/p>\n

In his order, the CJP observed that there was, to put it shortly, a lack of clarity on a matter of high constitutional importance.<\/p>\n

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.<\/p>\n

\u201cSeveral 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,\u201d the SC order said.<\/p>\n

\u201cThis is necessary for governments in the two provinces to be carried on in accordance with the Constitution,\u201d observed the CJP, adding that these matters involve the performance of constitutional obligations of great public importance apart from calling for faithful constitutional enforcement.<\/p>\n

\u201cThere is a material development in the last few days,\u201d 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.<\/p>\n

The order said: \u201cBy 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.<\/p>\n

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.<\/p>\n

\u201cConstitutional 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.<\/p>\n

\u201cIt 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.\u201d<\/p>\n

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.<\/p>\n

Punjab, KP election limbo<\/strong>
\nThe Punjab and KP assemblies \u2014 where the PTI had governments \u2014 were dissolved on January 14 and January 18, respectively, in an attempt to pave the way for snap polls.<\/p>\n

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.<\/p>\n

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.<\/p>\n

Meanwhile, President Arif Alvi had also urged the ECP on Feb 8 to \u201cimmediately announce\u201d the date for polls in KP and Punjab and put an end to \u201cdangerous speculative propaganda\u201d on both the provincial assembly and general elections.<\/p>\n

However, so far, the governors of the two provinces have refra\u00adined from providing any date for the polls on several pretexts.<\/p>\n

On Feb 17, 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.<\/p>\n

Subsequently, the president on Monday unilaterally announced April 9 as the date for holding general elections for the Punjab and KP assemblies.<\/p>\n

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 \u201ccompetent authority\u201d fixes the date.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

[social_warfare buttons=”Facebook,Twitter”]The Supreme Court will announce at 11am tomorrow (Wednesday) its verdict in the suo motu proceedings regarding the delay in the announcement of a date for elections in Punjab and Khyber Pakhtunkhwa, both of which have been under caretaker governments since the provincial assemblies were dissolved in January. The apex court reserved its judgment […]<\/p>\n","protected":false},"author":3,"featured_media":517,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[14],"tags":[34,32,33,31,38,35,37,36,29,30],"class_list":["post-516","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news","tag-cj","tag-election","tag-nayaujala","tag-pakistan","tag-pdm","tag-politics","tag-pti","tag-punjab-assembly","tag-sc","tag-supreme-court"],"yoast_head":"\nKP, Punjab elections: SC to announce verdict tomorrow<\/title>\n<meta name=\"description\" content=\"The Supreme Court will announce tomorrow its verdict in the suo motu proceedings regarding the delay in the announcement of a date for elections.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" 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