Four judges dissociate themselves from Punjab, KP polls case: ‘Neutral’ bench

Four Supreme Court judges on Monday dissociated themselves from hearing the suo motu case pertaining to the delay in the announcement of poll dates for Punjab and Khyber-Pakhtunkhwa. 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. The resizing of the bench to five from its original size of nine was an unexpected development before the court proceedings began Monday. 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. A written order was issued on the SC’s website in which dissenting notes of Justice Afridi, Justice Minallah, Justice Jamal Khan Mandokhail and Justice Syed Mansoor Ali Shah had been included. Following this, 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 was formed which presided over Monday’s hearing. During the hearing by the five-member bench, Chief Justice Umar Ata Bandial said that the parliament has clearly written in the Elections Act, 2017, that the president can announce the date for polls. After deciding that KP and Punjab governors – Haji Ghulam Ali and Baligh Ur Rehman – and the Election Commission of Pakistan (ECP) were not fulfilling their constitutional duties to announce the date for polls in both provinces, President Arif Alvi announced earlier this month that elections would take place in April – a move that drew strong criticism from the government. When the hearing began, CJP Bandial shared that four judges had recused themselves from the bench. “The rest of the court’s bench will keep on hearing the case,” said the CJP. He added that the court will continue hearing the case for the interpretation of the Constitution. The court directed Barrister Ali Zafar, the counsel for the speakers of the Punjab and Khyber Pakhtunkhwa assemblies, to argue whether the court should hear the case or not. “Can the court hear this case or not? In any situation, the case has to be completed tomorrow,” said the CJP. At this, Pakistan Peoples Party (PPP) lawyer interjected that the ruling parties had filed a plea for the formation of a full court. The CJP then remarked that they will hear all the pleas and decide them. Following this, Zafar, the lawyer representing the speakers’, began his arguments and said that the Punjab chief minister had sent the summary for the dissolution of the assembly to the governor. “The governor was bound to dissolve the assembly, however, he did not and the assembly was automatically dissolved 48 hours after his refusal,” said Zafar. The lawyer said that no constitutional officeholder can delay elections for more than 90 days, and the 90-day period in Punjab started on January 14. “Who appoints the governor?” questioned Justice Mazhar. At this, Zafar said that the governor is appointed after the president’s approval. Upon hearing this, Justice Mazhar remarked that there is a difference between an assembly being dissolved by the governor and its dissolution by itself following the completion of the constitutional term. While Justice Mandokhail asked whose job is it to decide the date for elections. this, Zafar said that a suo motu notice has been taken regarding a date for the elections. “There is no such provision in the Constitution that justifies delay in the elections beyond the 90-day time limit,” remarked Justice Mazhar. “Can the elections be delayed by someone?” he asked. To this, Zafar said that no one can delay the elections. Justice Mazhar said that the Punjab governor threw the ball in the Election Commission of Pakistan’s (ECP) court. “Ping pong is being played over the election date,” Zafar told the bench. Meanwhile, Justice Shah inquired if the case in the Lahore High Court (LHC) was adjourned at the request of the parties. At this, Sheikh Rashid’s lawyer Azhar Siddique told the bench that the case in the high court was adjourned because the matter was being heard in the apex court. While Zafar told the bench that no stay order had been issued on the intra-court appeals by the LHC. Upon hearing this, Justice Shah wondered whether any contempt of court petitions had been filed in the LHC after it had given the orders for the announcement of a date for the polls. At this, Zafar said that a contempt of court plea had been filed against the ECP. While Sheikh Rashid’s counsel added that the electoral body had submitted a vague reply over the contempt plea. At this point, CJP Bandial asked if any reason was provided for such a long adjournment on the intra-court appeal in Lahore. “Without a solid reason, hearing on such an important matter cannot be adjourned for too long,” he observed. Siddique told the court that the ECP sought time to submit a reply to the LHC and hence, the hearing was adjourned. “Election Commission failed to respect the high court’s orders,” Zafar told the court. Siddique said that the contempt of court plea was filed on February 14 in the LHC and a response was sought from the ECP. “The president wrote two letters on the matter,” said Zafar, adding that the letter – sent on February 8 – sought a date for elections from the ECP. At this, the CJP inquired if the ECP responded to President Arif Alvi’s first letter. Zafar replied that as per his information, the ECP did not respond to the president’s first letter. Meanwhile, Justice Shah remarked that the president’s letter was contrary to the high court’s order. “The high court had asked to give the date after consultations with the governor,” he said, adding that the president asked the electoral body to give a date for elections. At this, Justice Mazhar said that the ECP had written in its reply that consulting with the governor is not in the Constitution. “If the consultations did not take place then the commission should have given a date itself,” he added. The ECP says that it cannot give a date for the elections, said Zafar. He added that the real issue is that no one wants to give a date for the elections. He said that the president, in his letter, had clarified all the facts regarding the date of the elections. On this, Justice Mandokhail asked if someone had approached President Alvi for the election date or if he gave it unilaterally. The president had to intervene as it was a matter of basic rights, said Zafar, adding that “someone has to announce a date”. Zafar said that if the court believes that ECP should give the date then it should issues orders to it. “If the parties think that the elections are to be held by some other organisation then they should inform the court as well,” he added. At this point, Justice Akhtar asked about the situation in KP. On this, Barrister Zafar informed the court that the governor had dissolved the assembly in KP and asked the ECP to hold consultations with the stakeholders. “The KP governor has made the security a basis in his letter,” he said. As far as the election date was concerned, even the KP governor has not given a date, he added. Meanwhile, the lawyer representing the ECP informed the bench that three constitutional pleas were under trial in the Peshawar High Court (PHC). At this, CJP Bandial inquired why had the high court given a 21-day notice to the parties. “A legal point has to be decided. It’s not a civil suit that so much time was given,” the CJP remarked. At this, Zafar interjected that the KP Assembly was dissolved on January 18. “What progress has been made on the elections in KP,” CJP Bandial asked. Meanwhile, Justice Mandokhail asked whether the governor could suggest holding consultations citing terrorism. At this, Zafar told the court that in his opinion the KP governor did not have the authority to write such a letter. “This case is now based only on the question of who has the authority to give the election date,” CJP Bandial remarked. Meanwhile, Justice Mansoor remarked that the ECP was saying that the option of consultation for deciding a date for the election is not written in the Constitution. At this, Justice Mazhar asked if it would be a contempt of court if the ECP itself gave the date.