Constitution stipulates elections in 90 days: CJ

ISLAMABAD:

Chief Justice of Pakistan Umar Ata Bandial on Thursday hinted at quick disposal of suo motu notice regarding election date for the Punjab and Khyber-Pakhtunkhwa assemblies, observing that “Article 224 stipulates that elections are held in 90 days”.

This came as a nine-member larger bench took up the case to determine 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?; how and when is this constitutional responsibility to be discharged?; What are the constitutional responsibilities and duties of the federation and the province with regard to the holding of the general election?

A bench, headed by CJP Umar Ata Bandial included 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 and Justice Athar Minallah.

Subsequently, the apex court issued notices to the president, the ECP, chief secretaries of the governors of Punjab and K-P, the advocate generals of all the provinces, the president of the Supreme Court Bar Council, the Islamabad Bar Council and the attorney general for Pakistan.

The court adjourned the hearing for the case till tomorrow (Friday).

The Pakistan Democratic Party (PDM) and the PPP were also issued notices to assist the court.

At the onset of the proceedings, the chief justice stated that the court had to hear three things, adding that the court had little time and that the time for the polls was running out.

Counsel for the PTI Barrister Ali Zafar took the rostrum and said that he wanted to bring “things related to the president on record”.

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The chief justice noted that "the petitions [filed in the case] are now outdated and need clarification", adding that the situation changed after the president announced the election date on February 20 under Section 57 (notification of election programme) of the Elections Act, 2017.

He maintained that the questions were added by the speakers of both provincial assemblies in their petitions. “The Supreme Court only has to see the constitutional point and implement it,” he stated.

“Our request is also pending, please listen to us,” Zafar pleaded.

However, the top judge reiterated that the court had three matters to look into. “We have to see who has the authority to give the election date after the dissolution of the assemblies.

“The high court’s Feb 10 order was in front of us,” he said, referring to the Lahore High Court’s order in which it had instructed the ECP to immediately hold polls. The chief justice added that the court had a lot of factors in front of it.

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Attorney General for Pakistan Shehzad Elahi — the government’s lawyer — sought time from the court in the case. “If notices are issued to so many people, it will be difficult to prepare for tomorrow’s hearing,” he said.

At that, the chief justice said that the court will restrict itself to essential things, adding that the detailed hearing of the case will be held on Monday.

He went on to say that the suo motu notice was taken due to a number of factors. “Prolonged proceedings are underway in the high court but time is passing by.”

The chief justice observed that the Constitution decides the time for elections, which he said was ending. “The high court’s forum can be bypassed if there is an emergency. It was easier for us to fix two petitions — filed in the SC by the provincial assembly speakers — for hearing.”

“Section 57 deals with the date of elections,” he stated, pointing out that several new points had emerged in the case that needed to be explained.

The top judge further asserted that the Supreme Court will not tolerate the violation of the Constitution. “If there is a very serious situation, the time for elections can be extended. But we have to see if the Constitution is being implemented.”

“We want the implementation of the Constitution.”

Moreover, the chief justice highlighted that after President Alvi’s announcement of the election date, the situation changed. “The Supreme Court only has to see the constitutional point and implement it.”

He observed that elaboration was needed on the issue of elections and assured all the parties that the court would listen to their arguments. “We have suspended our schedule for the next week so that we can hear this case,” Justice Bandial said.

He added that Article 224 stipulated that elections would be held in "90 days, and time was passing quickly". “The case was pending in the high court but no decision was taken,” he said.

In his remarks, Justice Mandokhail said "before us is the petition of the speaker of the two assemblies", adding that the suo motu notice was taken by Justice Ahsan and Justice Naqvi. He said the chief justice could not hold a long hearing due to lack of time.

Lawyer Shoaib Shaheen maintained that "everyone would benefit if the decision to hold elections was taken". To this, Justice Minallah stated that all parties would benefit from a court decision.

“This is a time-bound case where there is an issue of holding elections,” Advocate Shaheen said.

Discussing the doubts in the case, Justice Minallah noted that the first question would be if the assembly was dissolved under the Constitution or not. “The second is whether the assembly should also look at Article 184(3) of the Constitution,” he added.

Article 184(3) sets out the apex court’s original jurisdiction and enables it to assume jurisdiction of matters involving a question of ‘public importance’ with reference to the ‘enforcement of any of the fundamental rights’ of the citizens.

Justice Syed Mansoor Ali Shah questioned if the assemblies could be restored if they were dissolved without reasons in violation of the Constitution.

CJP Bandial said these questions would be added for the adjudication of this matter and maintained that the president announced elections under Section 57 of the Constitution.

Barrister Ali Zafar said that the PTI’s application was pending and should also be heard. To this, the CJP said the apex court had three cases before it.

Moreover, the chief justice told Justice Mandokhail that his opinion about invoking of suo motu may be disregarded as other than the suo motu, two petitions are also filed on the same subject.

Suo motu justified

Supreme Court Judge Justice Jamal Khan Mandokhail, while expressing serious reservations over the suo motu jurisdiction, said that the action could not be ‘justified’.

Partaking in the nine-member larger bench that heard the matter, Justice Mandokhail read out the written note wherein he stated that late last night he received a file that Chief Justice of Pakistan Umar Ata Bandial took suo motu notice on the basis of an order passed by Justice Ijazul Ahsan and Justice Sayyed Muhammad Mazahar Ali Akbar Naqvi, which was filed by Ghulam Mehmood Dogar against the order dated November 24, 2022, passed by the Federal Service Tribunal (FST) in respect of his transfer.

"Learned Mr Abid S Zuberi is the counsel for Ghulam Mehmood Dogar. The petition of Ghulam Mehmood Dogar was pending when on February 16, the members of the bench called the chief election commissioner (CEC) of the Election Commission of Pakistan (ECP), who was not a party to the petition and asked about the holding of elections to the Provincial Assembly of Punjab".

The note maintained that "irrespective of the reply of the CEC, Justices Ahsan and Naqvi deemed it appropriate to refer the matter to the chief justice to take suo motu notice".

It furthered that the matter pertaining to the election had "no nexus or connection with the abovementioned service matter to the former chief minister about the pending case".

Justice Mandokhail stated that three audio recordings emerged and in one recording it was learned that Abid Zuberi was reportedly talking about Ghulam Mehmood Dogar. The judge added that this was “very serious”.

"Besides the learned judges have already expressed their opinion by stating that elections are required to be held within 90 days and that there was imminent danger of violation of the Constitution".

He maintained that the chief justice added to the points mentioned by the two learned judges and also expressed his opinion and that such “definite opinions have decided this matter and done so without taking into consideration Article 10(a) of the Constitution”.

"Thus, in these circumstances, it was not appropriate to refer the matter to the chief justice for taking suo motu notice under Article 184(3) of the Constitution," he said, reiterating that the suo motu action could not be justified.

Meanwhile, the Pakistan Bar Council said it expected that Chief Justice Umar Ata Bandial should constitute a bench comprising nine senior judges, including Justice Qazi Faez Isa and Justice Sardar Tariq to hear the suo motu matter on elections delay.

Justice Naqvi should recuse himself from the bench, it added.