Elections can only be deferred if situation is extremely dire, remarks CJP

Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial while declaring that Supreme Court will not tolerate any violation of the Constitution has remarked that elections could only be deferred if the situation was extremely dire, reported 24NewsHD TV channel.

The CJP’s observation came while hearing of the suo motu notice about an apparent delay in the elections for Punjab and Khyber Pakhtunkhwa assemblies by a nine-judge larger bench of the Supreme Court.

Other than the CJP, the bench 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.

The CJP others further said that the apex court only analyses the constitutional aspect and wants its implementation.

The court issued notice to the President, federal, Punjab, and KP governments, provincial governors, attorney general, advocate generals, all institutions linked to the elections, PBC vice chairman and all PDM parties.

On Wednesday, CJP Justice Bandial took suo motu notice over the delay in annoucnement of the election date, saying the questions which the nine-member bench will answer are: who will give the election date upon the dissolution of an assembly?; when and how the constitutional power of giving date for elections has to be exercised, and lastly what are the responsibilities of both Center and provinces with respect to holding general elections?  

At the outset of the proceedings, Justice Bandial noted that the court had to look into three things and maintained that the time for provincial elections was running out. CJP Bandial remarked that there were three questions whose answers the SC was seeking. “Article 224 of the constitution says elections should be held within 90 days of the dissolution of an assembly,” he said, and added, “The time is passing rapidly. The president has announced the date for elections in two provinces under section 57 of the Election Act. But there are ambiguities in the section. We have to determine who has the power to give the election date following the dissolution of an assembly.”

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

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

Ali Zafar, counsel for the PTI, said that one of the party’s petition was pending; therefore it should also be heard along with the main petition.

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, adding that the court had a lot of factors in front of it.

At one point during the hearing, the attorney general 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 tomorrow (Friday), adding the detailed hearing will be held on Monday (February 27). He went on to say that a suo motu case was taken due to a number of factors. “Prolonged proceedings are underway in the high court but time is passing by,” he added.

Justice Bandial observed that the Constitution decides the time for elections which is 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 CJP 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.”

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,” Justice Bandial said.

Justices Mandokhail, Minallah express reservations

At one point during the hearing, Justice Mandokhail and Justice Minallah raised some reservations regarding the suo motu notice taken by the CJP on the matter.

Raising objections to the suo motu notice taken by the apex court, Justice Jamal Khan Mandokhel said he had reservations over it. “In my opinion, the court should not have taken suo motu notice of delay in the elections,” he said.

CJP Bandial remarked that the SC took notice only after the speakers had filed petitions.

“The suo motu notice was taken on the note of Justice Naqvi and Justice Ahsan,” Justice Mandokhail 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.

Justice Athar Minallah also showed his reservations. “What breach of the Constitution was committed that the suo motu notice was taken?” he questioned.

The chief justice said the apex court would take all these reservations into account before giving its judgement.

At one point, Justice Minallah asked if the provincial assemblies of Punjab and Khyber Pakhtunkhwa were dissolved according to the Constitution.

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 should be heard,” Justice Akhtar said, adding “In a democracy, political parties form the government.”

Justice Minallah said: “This is an important issue, it is about transparency and trust in the courts.”
Justice Mandokhail spoke about certain audios that surfaced, in which “Abid Zuberi is speaking about some judges”. “In my opinion, these circumstances do not fall within 184(3),” he said.

PBC seeks changes to 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 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”.

Reporters: Amanat Gishkori and Tayyab Saif