A five-member bench of the Supreme Court of Pakistan has ordered to hold elections in Punjab and Khyber Pakhtunkhwa within 90 days with a ratio of three to two.
The court declared the date given by the President as constitutionally valid in Punjab and also ordered the Governor of Khyber Pakhtunkhwa to immediately give the date of elections in the province.
However, after the dissenting notices from two more judges came out, the position of the government has come out that the decision had come out in the ratio of four to three and not three to two. Hence, the decision of who will give the date of the election is Lahore Peshawar High Court will do it.
The verdict, which was reserved for Tuesday evening after a four-day hearing in the Supreme Court on Wednesday, was scheduled to be delivered at 11 am, but commotion and chatter had started in the Supreme Court even before 10 am.
The impression was clear in the arrival of the political leaders belonging to Tehreek-e-Insaf and the media chatter that the Supreme Court will order the elections.
Courtroom number one was packed even before the arrival of the judges and audio was arranged in courtrooms six and seven to avoid the additional rush.
At 11:16 the judges arrived in courtroom number one.
Chief Justice Umar Atta Bandyal started pronouncing the verdict and said that this verdict is being pronounced in a ratio of three to two. Two judges have written dissenting notes. The Chief Justice read the dissenting notes of Justice Mansoor Ali Shah and Justice Jamal Khan Mandukhel.
Later, the Chief Justice read out the operative part of the judgment.
Elections within 90 days are a constitutional requirement. Judicial decision
The court decision said that the procedure for general elections is different. The constitution provides 60 days for elections in case of timely dissolution of the assembly and 90 days for premature dissolution or dissolution of the assembly. In the current situation, elections must be held within 90 days after the dissolution of the assembly.
The Punjab Assembly dissolved itself within 48 hours due to the absence of the signature of the Governor, while the KP Assembly was dissolved with the approval of the Governor.
The judgment said that the Governor has been given three powers under the Constitution. Under Article 112, the governor dissolves the assembly on the advice of the second chief minister.
Article 222 of the Constitution states that elections are the subject of the Federation. The Election Act empowers the Governor and the President to announce the date of elections. If the assembly is dissolved by the governor, the date will also be announced by the governor. If the Governor does not dissolve the Assembly, the President can give the date of the elections under Section 57.
Give the date of the election of the President in Punjab and the Governor in KP. Court order
The court decision has said that the President has the authority to announce the date of the elections. After signing the summary of the dissolution of the assembly, it is the constitutional responsibility of the governor to announce the date of the elections.
Governor KP deviated from his constitutional responsibility by not announcing the date of the elections. The Election Commission should immediately recommend the date of the elections to the President.
After consulting the Election Commission, the president should announce the date of the elections in Punjab.
The decision has also said that the government should announce the date of the elections in the KP Provincial Assembly. Elections in every province should be held within the constitutional period.
The Supreme Court says that the Election Commission is bound to consult the President and the Governor. If elections are not possible on April 9, then the date can be changed in Punjab after consultation.
The Supreme Court in its decision has ordered all the federal and provincial institutions to assist the Election Commission with the elections. The Federal Election Commission should provide all the facilities for the elections. The court disposes of these election petitions by declaring them admissible.
Dissenting note of two judges
In the judgment, two members of the five-member bench objected to the admissibility of the petitions, Justice Mansoor Ali Shah and Justice Jamal Mandukhel dissented from the judgment.
Justice Mansoor Ali Shah and Justice Jamal Mandukhel wrote dissenting notes on the verdict in which it has been said that this case is not admissible under Article 184/3. The court should not exercise its 184/3 power in such cases.
It has been said in the controversial note that the Lahore High Court has given a decision on the elections. The Supreme Court cannot automatically take notice of a matter pending in the High Court.
Peshawar and Lahore High Courts disposed of election petitions in three days. Justice Yahya Afridi and Justice Atharmanullah agree with the notice.
It has been further stated in the dissenting note that 'They reject the requests for automatic notice on the elections, there was no automatic notice on this issue.'
The judges who disagreed with the decision say that the single bench of the Lahore High Court has already given a decision in favor of the petitioner. An intra-court appeal against the decision of the single bench of the Lahore High Court is pending in the division bench.
The constitutional limits of the Provincial High Courts cannot be interfered with automatically. Interference with the constitutional limits of the High Courts is against the basic structure of the Constitution. Interference in the constitutional boundaries of the High Courts is against the independence of the Provincial Constitutional Courts. Constitutional provincial courts should be strengthened instead of weakened.
In the dissenting note, it was said that there is no delay in the proceedings of these cases pending in the High Courts. The recent action of the Supreme Court has caused disruption in the ongoing proceedings in the High Courts. They order the High Courts to decide on these constitutional issues within three days. It is the power of Parliament to resolve all such matters.
Why was the notice taken by itself?
A two-member bench of the Supreme Court had sent the matter to the Chief Justice for best notice in the Ghulam Mehmood Dogar case on February 16, on which the Supreme Court took best notice for not announcing the date for the elections after the dissolution of Punjab and Khyber Pakhtunkhwa Assemblies. A nine-member larger bench was constituted.
The ruling coalition objected to the two judges included in the nine-member larger bench, after which Justice Ijazul Ahsan and Justice Mazahir Naqvi recused themselves from the bench and Justice Yahya Afridi and Justice Athar Manullah also recused themselves from the nine-member bench.
After the nine-member bench was broken, the Chief Justice of Pakistan reconstituted the bench and reduced it to five members.