ISLAMABAD: Chief Justice Umar Ata Bandial, on Monday, noted when the Constitution is silent regarding appointing a date for elections by the Punjab governor then the law is expressed and the direction is given in the statute (Election Act, 2017).
Attorney General for Pakistan Shehzad Ata Elahi said the bar of holding elections within 90 days has passed and now the Article 254 of the Constitution has become active.
The chief justice on February 22 had constituted a nine-member bench headed by him and 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 for hearing the suo motu and the petitions of the speakers of the Punjab and the Khyber-Pakhtunkhwa, and the Islamabad High Court Bar Association (IHCBA).
Punjab, KPK polls: Supreme Court adjourns hearing till Monday
At the outset of the hearing, the chief justice said Justice Ijazul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi accepting the plea of three major political parties of the incumbent government and the Pakistan Bar Council, and the note of Justice Jamal, that as they have disclosed their mind, in a note written to the CJP for taking suo moto, recused from the bench, while Justice Yahya Afridi and Justice Athar Minallah graciously disassociated from the bench. Justice Afridi and Justice Minallah disassociated because they had disclosed on the maintainability of the suo motu and the petitions, he said.
Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Jamal Khan Mandokhail, and Justice Athar Minallah in a discussion/ deliberations in the Ante-Room of the Courtroom No1 referred the matter to the chief justice for reconstitution of the bench.
In view of the plea of four judges, the chief justice constituted a five-judge bench, headed by him and comprised Justice Syed Mansoor Ali Shah, Justice Muneeb Akhtar, Justice Jamal Khan Mandokhail, and Justice Muhammad Ali Mazhar for hearing the matter of delay of holding the elections in the Punjab and the KP. The case was fixed at 12:00 p.m. but it resumed hearing at 1:30.
The chief justice said that they would decide the case today (Tuesday). During the hearing, the chief justice noted that the main issue before the Court is who would announce the date, adding after the date functions of the Election Commission of Pakistan to hold elections in the Punjab and the KP would start.
Justice Muneeb said when the President of Pakistan can give dates for holding of general elections in 2013 and 2018 then why can’t he give a date for the elections of the dissolved assemblies of the Punjab and the KP. The President acted under Section 57(1) of the Election Act, when the governors failed to appoint the dates.
Justice Jamal Khan Mandokhail questioned; if the ECP is ready to hold the elections, but God forbid there are no funds then what will happen? Barrister Ali Zafar argued if there is no money then would the nation wait for resources for 10 years. Justice Muneeb remarked there is money for cricket matches country-wide, but not for elections. He said under Article 220 it shall be the duty of all executive authorities in the Federation and in the provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions.
Justice Mansoor observed if the court holds that the election be held tomorrow then can the ECP do it. He said they don’t know about the preparedness of the ECP, but there has to be a reasonable timeframe for that. He said the Court has to see when the 90 days will start, whether it will start with the dissolution of the Assembly or when the President has announced the date. He questioned if the governor also gives the date then which date will prevail? Whether of the President or of the Governor?
Ali Zafar informed the bench that 90 days of the dissolution of the Punjab would expire on April 13 and after that, the ECP has 14 days to announce the result.
Justice Mazhar noted that there is no provision in the constitution and the statute for the postponement of the election. Upon that, Justice Mansoor remarked irrespective of what is happening in the country? Justice Muneeb responded to the brother judge’s remark and said the Court should have no concern with what is happening outside as it has nothing to do with it. He said if the Governor fails to act under Article 105 (3) to appoint a date for elections then the President after waiting quite sometime has announced the date under Section 57 (1) of the Election Act, 1999.
Justice Mansoor observed that when the power of dissolution is with the governor, then why not leave it to the governor to announce the date. The chief justice said: “We should not interfere with the wisdom of the Parliament; the power is given to the ECP to hold elections.”
Justice Mansoor’s note says; “The order made by Justice Ijaz and Justice Naqvi in a case which, in my view, had no concern whatsoever with the present matter before us, reflecting to an ordinary reader of the order an unnecessary interest of the two-member Bench in the matter. Attached to the said order is a controversy in the public domain, generated by the audio leaks relating to one of the members of the said Bench.”
“In spite of the requests from within the Court and outside the Court, there has been no institutional response to the allegations either by this Court or by the constitutional forum of the Supreme Judicial Council. Further, there is news of references being filed against the said member before the Supreme Judicial Council by the Bar Councils. In this background and before these allegations could be probed into and put to rest, inclusion of the said member on the Bench in the present matter of (public importance) appears, most respectfully, inappropriate,” he added.
Justice Yahya Afridi in his note stated that it appears that prima facie these petitions fall within the purview of Article 184(3) of the Constitution. However, it would not be judicially appropriate to exercise the power to make an order under the provision of the Constitution given that the matters raised in the petitions are presently pending adjudication before the Lahore High Court in intra-court appeal, contempt petition, and the Peshawar High Court in a writ petition.
He further stated that passing any finding or remarks during the proceeding of the present petitions by this Court would not only prejudice the contested claims of the parties in the said petition/ appeal- pending before the respective High Courts but, more importantly, offend the hierarchical judicial domain of the High Court as envisaged under the Constitution. It would also disturb the judicial propriety that the High Court deserves in the safe, mature, and respectful administration of justice. Accordingly, I dismiss these three petitions.
“I leave it to the worthy chief justice to decide my retention in the present bench hearing the said petitions,” he further said.
Justice Minallah in his note said; “the questions raised before us cannot be considered in isolation because questions regarding the constitutional legality of the dissolution of the provincial assemblies of Punjab and Khyber-Pakhtunkhwa cannot be ignored. Were they dissolved in violation of the scheme and principles of constitutional democracy before the completion of the term prescribed under the Constitution?” “The questions regarding the legality of the dissolution involve far more serious violations of fundamental rights. The matter before us is definitely premature, because it is pending before a constitutional Court of a province, as noted in the opinion of my brother Justice Yahya.”
The case is adjourned until today (Tuesday).
Copyright Business Recorder, 2023
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