President to give date for Punjab polls after consulting ECP, governor to announce for KP: SC

• SC says Section 57(1) of Election Act empowers president to give polls date if governor does not dissolve assembly. 
• SC directs federal govt to provide EC all facilities, personnel and security for polls. 
• Justice Mandokhail and Justice Shah have dissented from majority verdict. 

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ISLAMABAD: The Supreme Court, in a split verdict, ruled on Wednesday that elections for Khyber Pakhtunkhwa (KP) and Punjab assemblies should be held within 90 days.

The direction was given by the apex court in the suo motu notice verdict which was announced by Chief Justice Umar Ata Bandial today. 

A five-member bench headed by CJP Bandial and comprising Justice Munib Akhtar, Justice Muhammad Ali Mazhar, Justice Mansoor Ali Shah, and Justice Jamal Mandokhail reserved the verdict after conducting hearings for two consecutive days — Monday till Tuesday.

In a three-two split decision the bench gave relief to the petitioners in the case, while two of the bench members objected to the admissibility of the pleas. Justice Mandokhail and Justice Shah have dissented from the majority verdict. 

In the verdict the apex court noted that there are "different aspects and requirements" for holding polls  but ruled that one thing that was "absolutely crucial is the timeframe" for the polls. It added that Constitution envisages two periods for holding polls — 60 days in case the assembly is dissolved after its term is completed and 90 days in case the assembly is dissolved before the expiry of its term. 

The verdict then stated that the bench had three questions before it. One was on the "constitutional responsibility and authority for appointing the date" for the elections in various situations. The other question before the bench was how and when the constitutional responsibility is discharged. 

The last question was on what constitutional responsibilities and duties the federation and the province have on general election.

Situations in which assembly is dissolved and governor's role 

The verdict then explained that there are three situations in which an assembly is dissolved and the role of the governor. 

As per the court the first situation is set out in clause (2) of Article 112. It It added in such a situation the dissolution of the assembly is done via an order made by the governor at his discretion, subject to the previous approval of the president and fulfillment of the conditions set out therein. 

"In this situation, the Assembly cannot, and does not, dissolve without an order being made by the Governor, and dissolves immediately on the making of the order," said the Supreme Court. 

The Supreme Court said that the other situation is explained in the   clause (1) of Article 112 where the assembly is dissolved on the chief minister's advice. 

The court further said that such a situation "can be divided into two sub-categories". 

One sub-category was that governor dissolves the assembly on the CM's advice. The other was the assembly getting dissolved automatically within 48 hours if the governor does not follow the CM's advice.  

As per the Supreme Court, the third situation for the dissolution of assembly is mentioned in Article 107 where the assembly is dissolved after the completion of its five-year term. 

Section 57(1) empowers president to give date: SC 

The verdict further stated that Article 105(3)(a) directs the governor to appoint a date for the election within 90 days if he dissolves the assembly.

The verdict also cited the Elections Act, 2017, and stated that Section 57(1) of the law allows the president to “announce the date or dates of the general elections after consultation with the commission” in case the governor does not dissolve the assembly.

On the president's unilateral decision of announcing the verdict, the Supreme Court ruled that Dr Alvi's decision applies for Punjab but is "invalid" in the case of Khyber Pakhtunkhwa. 

The verdict also noted that KP governor breached "his constitutional responsibility"  by not announcing a date for the polls. 

ECP directed to consult president 

The court noted that in "ordinary circumstances" the polls should have been held on April 9 as announced by the president. 

"However, we are informed that on account of the delay in the emergence of the date for the holding of the general election, it may not be possible to meet the 90 day deadline stipulated by the Constitution. It is also the case that (possibly on account of a misunderstanding of the law) the Election Commission did not make itself available for consultation as required under s. 57(1) of the 2017 Act. The Election Commission is therefore directed to use its utmost efforts to immediately propose, keeping in mind ss. 57 and 58 of the 2017 Act, a date to the President that is compliant with the aforesaid deadline. If such a course is not available, then the Election Commission shall in like manner propose a date for the holding of the poll that deviates to the barest minimum from the aforesaid deadline. After consultation with the Election Commission the President shall announce a date for the holding of the general election to the Punjab Assembly," ruled the Supreme Court. 

On elections in KP, the verdict directs that governor to announce a date for the polls after consulting the ECP. 

Federal govt directed to provide support for polls 

The verdict also directed the federal government to ensure that the polls are carried out as per the Constitution. 

"It follows that the Federation, and in particular the Federal Government, is, inter alia, obligated, on an immediate and urgent basis, to forthwith provide the Election Commission with all such facilities, personnel and security as it may require for the holding of the general elections," said the verdict and ruled that the matters before the court "maintainable" and stand disposed of the petition.

Dissenting note

In the dissenting note, Justice Shah and Justice Mandokhail termed the suo motu proceedings "wholly unjustified in the mode and manner they were taken up under Article 184(3) of the Constitution". They said that the suo motu notice had been initiated with "undue haste".

"There is no justification to invoke our extraordinary jurisdiction under Article 184(3) to initiate suo motu proceedings or entertain petitions under Article 184(3) of the Constitution, as a single Bench of the Lahore High Court has already decided the matter in favour of the petitioner before the said High Court vide judgment dated 10.02.2023 and the said judgment is still in the field. The intra-court appeals (ICAs) filed against the said judgment are pending before the Division Bench of the Lahore High Court (and none of the said petitioners has approached this Court under Article 185(3) of the Constitution)," said the dissenting note.  

Both judges were of the view that if a a constitutional issue is pending before a high court then the matter "should not be readily interfered with rather be supported to strengthen the provincial autonomy and avoid undermining the autonomy of the provincial constitutional courts".

"There is no inordinate delay in the proceedings pending before the High Courts, infact the instant proceedings have unnecessarily delayed the matter before the High Courts. However, considering the importance of the matter we expect that the respective High Courts shall decide the matters pending before them within three working days from today," said the two judges. 

Justice Shah and Justice Mandokhail  stated that "even otherwise without prejudice to the above, such like matters should best be resolved by the Parliament".

"We, therefore, agree with the orders dated 23.02.2023 passed by our learned brothers, Yahya Afridi and Athar Minallah [...] and dismiss the present constitution petitions and drop the suo motu proceedings," the dissenting note read.

The suo motu notice 

The Supreme Court had taken suo motu notice on the issue over the election date as to who — the president, governors, or the Election Commission of Pakistan (ECP) — is responsible for fixing the date in case the provincial assemblies are dissolved.

After two-day long hearings, the court reserved its verdict at around 6:30pm Tuesday as the parties involved in the case wrapped up their arguments.

The top court had also asked the political parties — the Pakistan Tehreek-e-Insaf (PTI) and the ruling alliance — to agree upon a mutual date for the elections, but the counsel for Pakistan Peoples Party (PPP)  told the court that it is not the job of political parties to fix election date.

However, the Pakistan Muslim League-Nawaz's (PML-N) lawyer asked the court to continue the proceedings as the coalition partners needed more time to consult with each other.

The SC had taken the suo motu notice of an apparent delay in the elections of the two assemblies, on February 23, following President Arif Alvi's announcement of the date of polls, a move that drew strong criticism from the government.

As per the CJP, the suo motu notice had been taken to assess who was eligible to issue the date for polls and who had the constitutional responsibility of conducting elections and when.

It is important to note that four judges had objected to the constitution of the bench and suo motu jurisdiction under Article 184(3) and wrote dissenting notes after the initial hearing on February 23. 

Justice Jamal Khan Mandokhail, Justice Mansoor Ali Shah, Justice Yahya Afridi and Justice Athar Minallah had requested the chief justice to form a new bench to hear the case.

Moreover, Justice Ijazul Ahsan, Justice Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Minallah dissociated themselves from the case.