SC debated President authority to act without cabinet recommendation

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ISLAMABAD: Supreme Court judges debated on Tuesday whether President Arif Alvi had the authority to act without the recommendation of the cabinet as a five-member bench resumed hearing its suo motu proceedings regarding the delay in the elections in Khyber Pakhtunkhwa and Punjab.

Chief Justice of Pakistan (CJP) Umar Ata Bandial had yesterday split a larger bench into a five-member bench to conduct suo motu proceedings. He also indicated that they would like to conclude the matter by today.

The judges hearing the case today are CJP Bandial, Justice Shah, Justice Munib Akhtar, Justice Mandokhail, and Justice Muhammad Ali Mazhar.

Those who dissociated themselves from the hearing include Justice Ijazul Ahsan, Justice Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Minallah.

During today’s hearing, Barrister Ali Zafar, Attorney General for Pakistan (AGP) Barrister Shehzad Ata Elahi, Islamabad High Court Bar Council President Abid Zuberi, JUI-F lawyer Kamran Murtaza and President Arif Alvi’s lawyer Salman Akram Raja were present in court.

At the outset of the hearing, AGP Elahi said that he was ready to present his arguments.

He objected that the name of Islamabad High Court Bar Council President Abid Zuberi was removed from the apex court’s previous order. “The Supreme Court identifies the bar association as an institution.”

CJP Bandial said: “What is presented in court is not a court order. When the judges sign it, that is when it becomes a decree.”

Subsequently, Zuberi started presenting his arguments.

At one point during the hearing, Justice Mandokhail wondered if the governors and president were bound by the advice of the cabinet in the matter. “Can they give the date for elections on their own?”

Here, the top judge observed that the governor was not bound by anyone’s advice on the appointment of the caretaker government and the date for elections.

“Where there is a discretionary authority, there is no need for advice,” Justice Mazhar also remarked.

The CJP then asked: “Who can issue the notification for the dissolution of assemblies?”

Zuberi replied that the notification of the Punjab Assembly’s dissolution was issued by the law secretary.

At that, the AGP interjected, saying that Zuberi was the petitioner’s lawyer and could not represent the bar council. However, Zuberi contended that he was the lawyer of the IHC bar and not of any political party.

“SC had declared in the past that elections are to be held within 90 days,” the IHC bar lawyer said, continuing his arguments.

Meanwhile, Justice Mandokhail maintained that under Article 48 of the Constitution, every act and action of the president was bound to be on the recommendation of the government.

“Will the current government or the previous government call for the announcement of the elections?” he asked.

“This means that the announcement of the date for elections will be on advice,” the chief justice then observed.

“But the governor has the right to dissolve the assemblies,” Zuberi argued, explaining that there were four ways of dissolving assemblies in the Constitution.

“Who will issue the notification for the dissolution of assemblies,” the CJP reiterated.

Zuberi replied that the governor had to issue the notification on the advice of the chief minister. “If the governor does not sign [on the CM’s advice], then the assembly automatically dissolves within 48 hours.”

The lawyer went on to say that in this case, the notification for the dissolution was issued by the law secretary and not the governor.

Here, Justice Akhtar said that the caretaker government is formed seven days after the dissolution. He also stated that there needed to be harmony among the different clauses of the Constitution.

Justice Mandokhail noted that the government could still ask the governor for elections today as per the Constitution.

“How can the governor refuse if advice [on the date of elections] comes from the government,” Justice Shah said.

‘Holding elections within 90 days is in spirit of the Constitution’
Meanwhile, Justice Mazhar stated: “The primary question is also that the governor is saying he did not dissolve the assembly.”

Zuberi contended that the mention of the announcement of the date for elections was only in Article 105(3) of the Constitution — which states that the governor shall act on and in accordance with the advice of the chief minister.

Justice Mandokhail remarked that there was no restriction on the government regarding the announcement of the date for polls.

“But the government hasn’t announced the date for so long,” Zuberi pointed out.

Here, the CJP asked: “Are you trying to say that the government is not fulfilling its Constitutional responsibility?

“Holding elections within 90 days [of the dissolution] is in the spirit of the Constitution,” he maintained, adding that the bench will ask the AGP to assist the court on this matter.

On the other hand, Zuberi continued that if the assembly breaks under the pressure of time, then the president was supposed to give the election date. “I am of the opinion that giving the date for elections is the authority of the president of the country.”

At one point, Justice Shah asked: “Is the governor still bound to give the election date if the Election Commission of Pakistan shows incapacity to conduct the polls.”

The IHC bar lawyer replied that the governor had to give a date, irrespective of the situation.

Justice Mazhar observed that the governor had no authority not to give a date for polls but added that the governor had to give the date keeping in mind the decisions of the electoral body.

‘Under which law is the president writing letters?’
Subsequently, Justice Shah asked: “Can the president take a decision without the advice of the cabinet?”

Justice Mandokhail reiterated that the powers of the president were clear in the Constitution. “The president is bound to take advice for everything.”

Here, Zuberi objected. “The president is not obliged to seek advice. He can exercise every power that is given by law. The president and governors are only bound to consult with the ECP on the date of elections,” he stated.

However, Justice Shah stressed that the president, as the head of the state, could only take decisions on advice.

Justice Mandokhail also said that the powers of the president were not directly stated in the Constitution. “If there are no powers in the Constitution, then action will be taken under the law. And the law comes from the Constitution.”

Justice Shah asked: “Under which law is the president writing letters?”

For his part, Zuberi said that the president had sent the letters to the ECP for consultation but the judge contended that the Constitution did not talk about any dialogue.

“Let’s suppose that we believe that the law gives the president permission [to announce the date for elections] … but even then he is bound by the advice,” Justice Mandokhail observed.

“The caretaker government can also ask to give a date,” Justice Shah said.

Here, the CJP said that the court will decide whether the president needs to consult with the government after listening to arguments from the other side.

The attorney general argued that it was a different argument as to who could take the polls ahead of 90 days. To this, Justice Shah asked if the ECP could extend the date of elections given by the governor.

“If the governor asks for election on the 85th day, then the ECP can give the date for the 89th day,” AGP Elahi responded.

At this point, the CJP said: “This is the reason why the governor is bound to consult with the ECP. Whether it is the governor or the president, everyone is bound by the law and Constitution.”

Commencing his arguments in the case, the AGP said that the president could only announce the date for elections when the National Assembly was dissolved. “In the second situation, the president can only give the date when general elections are being held.”

Here, the CJP pointed out that there was a difference between the discretionary and advisory powers of the president.

AGP Elahi also stated that if the governor asked for elections a day after the dissolution of the assembly, the ECP would not agree, adding that elections should be held within 90 days and not extended beyond that.

“The governor also has to take into consideration the Election Act, 2017,” Justice Akhter added.

Subsequently, the hearing was adjourned for half an hour.

When the proceedings resumed, the AJP stated that the ECP was an independent institution and its responsibility was to hold polls.

“The position of the Punjab governor is that the ECP should announce the date for elections itself,” he contended, elaborating that in his intra-court appeal in the Lahore High Court, the governor had said that consultation with him on the matter was not required.

“On the other hand, the ECP is of the stance that how can it give a date for elections itself,” the attorney general told the court.

Here, CJP Bandial said: “I don’t understand why a 14-day time was sought from the high court. As the attorney general, you were fully prepared as this case started.

“What were the points for which the lawyer [in the LHC] needed 14 days to prepare? In the high court, the matter should have been fixed for hearing on a daily basis.”

At one point, Justice Mazhar stated that the president had used Section 57(1) of the Election Act, 2017 — which says that the president shall announce the date or dates of the general elections after consultation with the ECP — for the announcement of the date of polls.

“If the president has no power [to announce the election date], then this means that Section 57(1) is ineffective,” he observed, adding that the law should then be struck out.

The AGP said that in his opinion, the electoral watchdog could give the date for elections.

“If the ECP has to announce the date, then there is no need for consultations with anyone,” Justice Mandokhail said.

However, Justice Akhtar said that the purpose of the Constitution and law needed to be understood. “If the ECP has to announce the date for elections, then where is the role of the governor and the president?”

At that, CJP Bandial stressed that the role of the election commission was important in any situation. “According to you, the role of the ECP is final.”

Meanwhile, AGP Elahi contended that the interpretation of the Constitution could not be done in the Parliament, asserting that the “Constitution is supreme”.

“The Constitution does not give the president permission to decide on a date for elections,” he said. “He can only announce the date.”

The LHC, the attorney general continued, had clearly stated that holding elections and deciding their date was the authority of the ECP. “Elections are the subject of the federal [government],” he added.

Justice Mandokhail then said: “What is the point of arguing when everything is clear?”

Separately, the CJP reiterated that intra-court appeals in the LHC were being delayed for 14 days. “Why are such lengthy adjournments being given on important constitutional matters?

“Under which provision of the Constitution does ECP have the right to decide on the date for elections?” the top judge asked.

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