Justice Athar Minallah of the Supreme Court asked on Thursday if the provincial assemblies of Khyber Pakhtunkhwa and Punjab were dissolved according to the Constitution.

He passed these remarks as the top court took up a suo motu notice to determine who has the constitutional responsibility and authority to announce the date for elections to a provincial assembly after it was dissolved in different situations.

A nine-member bench, headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and also comprising 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, heard the case.

The hearing comes after President Dr Arif Alvi on Monday unilaterally announced April 9 as the election date in both provinces after his invitation for consultations on the matter was turned down by the Election Commission of Pakistan (ECP).

‘Want implementation of the Constitution’

At the outset of the hearing, CJP Bandial noted that the court had to look into three things and maintained that the time for provincial elections was running out.

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

The CJP stated that Alvi had announced the date for elections under Section 57 (notification of election programme) of the Elections Act, 2017.

“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. CJP Bandial added that the court had a lot of factors in front of it.

At one point during the hearing, 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 CJP 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 a suo motu notice was taken due to a number of factors. “Prolonged proceedings are underway in the high court but time is passing by.”

CJP Bandial 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 CJP 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,” CJP Bandial said.

Justice Mandokhail raises questions on suo motu notice

Meanwhile, Justice Mandokhail raised some reservations regarding the suo motu notice taken by the CJP on the matter.

“The suo motu notice was taken on the note of Justice Naqvi and Justice Ahsan,” he said, referring to SC’s proceedings regarding the transfer of Lahore police chief Ghulam Mehmood Dogar.

“In that case, the chief election commissioner, who was not a respondent, was summoned,” Justice Mandokhail noted.

‘Were KP, Punjab assemblies dissolved as per the Constitution’

At one point during the hearing, the CJP noted that Article 224 of the Constitution stated that elections were supposed to be conducted within 90 days of the dissolution of the provincial legislature.

“Time is passing by quickly. The matter was pending in the high court but no decision was taken.”

Here, petitioner and Islamabad Bar Council President Shoaib Shaheen said that if a decision regarding holding elections was taken in the suo motu proceedings, it would be beneficial for everyone.

“This is a time-bound case and entails the issue of holding elections,” he added.

Justice Minallah also maintained that if the court gave such a decision, all the political parties would benefit from it.

Meanwhile, Justice Mandokhail spoke about certain audios that surfaced, in which “Abid Zuberi is speaking about some judges”. Zuberi was a part of today’s hearing.

“In my opinion, these circumstances do not fall within 184 (3),” he said.

Justice Minallah said that he was discussing the constitutional question in the case. “The first question would be whether the assemblies were dissolved as per the Constitution,” he said.

“The second question is whether the assembly should be looked at in terms of 184(3).”

“In my opinion, all political parties [positions] should be heard,” Justice Akhtar said. “In a democracy, political parties form the government.”

AGP Elahi agreed, suggesting that political parties and the government should be allowed to voice their legal stance, so they could be called.

Justice Minallah then said: “This is an important issue, it is about transparency and trust in the courts.”

Advocate Azhar Siddique — who has been representing the PTI in various cases — suggested High Court records should be summoned.

However, the chief justice said today only notices would be issued.

Notices issued

The court noted that when the provincial assemblies’ speakers submitted the petition, correspondence between the election commission and President Alvi had already begun. “In the petitions, the governors’ decision of not announcing the date of polls was challenged.”

Here, the AGP said that representatives of political parties and the government can be called to court to present their legal stance on the matter.

Subsequently, the apex court issued notices to the president, ECP, 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 and instructed them to appear in SC on Feb 27.

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

Meanwhile, Justice Minallah asked if the request of the Islamabad High Court Bar Association regarding the polls had been accepted to which Shoaib Shaheen said that the resolution was approved by ten to one.

Shaheen stated that directions regarding holding elections would not be against any political party.

For his part, Barrister Zafar said that all the respondents should first come and decide if they wanted elections or not.

Here, Justice Akhtar said the issue was the dissolution of assemblies and how general elections would be held.

“In the suo motu hearing against the speaker ruling, notices were issued to all the political parties present in the Parliament. But this case is different from the speaker ruling case,” he added.

The hearing was then adjourned till Feb 24, 11am.

PBC seeks changes in larger bench

Ahead of the hearing, the Pakistan Bar Council (PBC) said that CJP Bandial should not exclude Justice Qazi Faez Isa and Justice Sardar Tariq Masood from the bench constituted to hear the case to “make its (bench’s) image impartial and neutral”.

In a press release issued by PBC Executive Council Chairman Hassan Raza Pasha and Vice-Chairman Haroonur Rashid, the PBC said their inclusion was necessary so that the “public and lawyers community may not question upon the bench for hearing of [the] important matter in respect of the determination of constitutional responsibility and authority”.

The PBC also called upon Justice Naqvi to “voluntarily recuse” himself from the bench, “which the propriety demands from him”. Justice Naqvi is one of the two judges that Interior Minister Rana Sanauallah said PML-N would move to be recused from hearing cases pertaining to the PML-N leadership.

CJP takes suo motu notice

On Wednesday night, 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 “lack of clarity” on the matter.

In the notice, CJP Bandial said that the SC bench would consider the following questions:

• 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?

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

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.

“Several 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,” the SC order said.

“This is necessary for governments in the two provinces to be carried on in accordance with the Constitution,” observed the CJP, adding that these matters involve the performance of constitutional obligations of great public importance apart from calling for faithful constitutional enforcement.

“There is a material development in the last few days,” 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.

The order said: “By 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.

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.

“Constitutional 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.

“It 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.”

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.

Delay in holding polls

The Punjab and KP assemblies — where the PTI had governments — were dissolved on January 14 and January 18, respectively, in an attempt to pave the way for snap polls.

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.

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.

Meanwhile, President Arif Alvi had also urged the ECP on Feb 8 to “immediately announce” the date for polls in KP and Punjab and put an end to “dangerous speculative propaganda” on both the provincial assembly and general elections.

However, so far, the governors of the two provinces have refra­ined from providing any date for the polls on several pretexts.

Last week, 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.

Subsequently, the president on Monday unilaterally announced April 9 as the date for holding general elections for the Punjab and KP assemblies.

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 “competent authority” fixes the date.