ISLAMABAD: On the Pakistan Tehreek-e-Insaf’s(PTI)appeal against the Election Commission of Pakistan’s (ECP) decision to postpone the elections in Punjab and Khyber Pakhtunkhwa, the Supreme Court reserved its decision on Monday. The court announced that the verdict would be delivered tomorrow but did not specify what time. Chief Justice Umar Ata Bandial, who presided over a three-judge bench that also included Justices Munib Akhtar and Ijaz ul Ahsan, gave the Attorney General of Pakistan, Mansoor Usman Awan, instructions to find a resolution through political dialogue.
“For the sake of the Pakistani nation, engage in political dialogue. reach a political decision,” said the chief justice. The government requested the creation of a new bench to hear the case, but the decision was still made. According to CJP Bandial, there is constitutional machinery in place if political dialogue is not held. “People are making accusations because they want to advance their political agendas. The chief justice remarked that this had never happened before and added that they even wanted to select the judges who would hear their cases. While expressing his respect for the legislature and the executive branch, CJP Bandial urged patience and tolerance. Elections being held simultaneously is a fantastic idea. However, in this instance, two assemblies have been disbanded. A promise would be required.
The top judge of the country further spoke about the lack of political dialogue in the country and acknowledged the pressure on the federal government. “If the federal government assures conducting elections then something can be considered.”
He also mentioned that Article 218 is the ECP’s responsibility, but it doesn’t allow violation of the Constitution.
“Mr Irfan Qadir said that the president’s powers are subject to consultation. Unfortunately, political agendas come to the fore in political parties,” he said.
He asked if the elections date could be issued without consultation with the president and that the AGP did not raise such an important question while getting embroiled in the bench related matters.
“We cannot listen to the lawyers of the ruling alliance due to the boycott of court,” he said.
Ahead of today’s hearing Attorney General for Pakistan Mansoor Usman Awan filed a miscellaneous plea in the apex court for the reconstitution of the bench.
In the plea, filed on behalf of the federation, the Supreme Court was requested to dismiss the election delay case because of the majority (4-3) order/judgment of March 1.
The petition stated that the proceedings in the instant petition might kindly be postponed in light of the order passed by Justice Qazi Faez Isa, postponing all the proceedings in suo motu matters.
“This Hon’ble Bench, in view of submissions made in paragraphs 11 and 12, may graciously recuse from hearing the instant petition and a bench comprising of all remaining Hon’ble Judges of this court, who did not hear SMC No. 1/2023, CPs No 1 and 2 of 2023, may kindly be constituted to decide the questions raised herein,” it requested.
At the outset of the hearing, Pakistan Peoples Party (PPP) lawyer Farooq H Naek came to the rostrum and requested to speak.
However, Chef Justice of Pakistan (CJP) Umar Ata Bandial asked whether they were becoming a party to the case as they had announced a boycott of the proceedings.
At this, Naek told the bench that they have not boycotted the proceedings as of yet.
“Do your consultations and tell us. Tell us in writing that you have not boycotted the hearing,” said the CJP.
The PPP counsel then clarified to the court that his party had objections to the formation of the bench and had not boycotted the proceedings.
The CJP then remarked that in the newspapers it has been reported that the PPP has boycotted as well.
“You have boycotted and came to present your arguments. In the [PDM] meeting, no confidence was expressed in the bench,” interjected Justice Munib Akhtar.
On this, Pakistan Muslim League-Nawaz (PML-N) lawyer Akram Sheikh told the court that they are yet to take back the power of attorney and they have objections to the bench hearing the case. He also clarified they have not boycotted the proceedings yet.
“A conference of political parties was held and in the last 48 hours in the national press, it is being stated that a boycott has been announced. If you do not have confidence in us then how can you give arguments,” asked Justice Akhtar.
The CJP then turned towards AGP Mansoor Usman Awan and asked what instructions he had gotten, adding that the government cannot boycott the proceedings.
The AGP responded that the governments operate according to the Constitution and that the ECP has the power to defer the date for the polls.
However, Justice Ahsan observed how can ECP change the date when the Supreme Court has made a decision.
“Supreme Court’s decision is applicable to everyone including the executive,” said Justice Ahsan.
AGP Awan then went on arguing about the March 1 order of the Supreme Court stating the president was asked to give a date for polls in Punjab and the governor in Khyber Pakhtunkhwa. He added that the KP governor is yet to fix a date for the polls to the provincial assembly.
“The law does not allow anyone to delay elections. Only the court can defer the election date,” responded CJP Bandial. He added that in 1988 as well the court postponed the elections.
“The order that is being referred has already been implemented,” added CJP Bandial. He added that the Supreme Court’s hearing is in the public interest and there is a difference of opinion among judges.
On the other hand, Justice Ahsan stated that the real issue was the ECP order, adding that court directives are bounding.
AGP Awan then went back to the suo motu case stating that in the “first round,” a nine-member bench heard the case.
“Details of the two judges’ dissenting note have come forward while the two judges had thrown out the pleas on the first day,” stated AGP Awan.
CJP Bandial then told the AGP that he is yet to find a case in which the chief justice was barred from changing the bench.
The AGP said that the Peshawar case was one but the CJP stated that it was not a judicial order but a minority order.
AGP Awan then repeated that the court order for the March 1 verdict was yet to be issued.
“Are you saying that I did not form a new bench and the original one is still intact?” asked CJP Bandial adding, “Difference of opinion is part and parcel of the apex court’s proceedings; however, consultations are held as well”.
“In our opinion, the majority of the judges have rejected the suo motu notice,” said AGP Awan.
The CJP responded that the AGP was disregarding the decision of a five-member bench that had empowered the top judge to formulate benches.
The AGP stated that reservations regarding Justice Ahsan and Justice Mazahar Naqvi were in front of the court, and repeated that the current suo motu notice had been rejected by the majority of the court.
However, CJP Bandial stated that all judges agreed that the chief justice had the authority to form benches.
“The power exercised by the chief justice is administrative and not judicial. The case was heard on merit,” stated Justice Ahsan.
The AGP responded that Justice Athar Minallah had said that “if the chief justice wishes he can include him on the bench”.
“If the judge has stated that it’s the chief justice’s prerogative to form a bench then the argument is over,” interjected Justice Akhtar. He added that if the logic behind the 4-3 decision was accepted then the matter would go to the nine-member bench.
“The detailed dissent note does not include the point of reconstitution of the bench,” added CJP Bandial.
The AGP then stated that as per the note, the reconstitution of the bench was an administrative measure, arguing that as per the note Justice Ahsan and Justice Naqvi recused themselves from the case.
The CJP then added that after the opinion of two judges a new bench was formed and the hearing was resumed.
At this, AGP Awan stated that as per the opinion of four judges, the suo motu notice was dismissed.
However, CJP Bandial stated that the government’s lawyer had failed to convince them on this point. He also added that Justice Qazi Faez Isa’s order is not clear.
“The order of any bench of the Supreme Court applies to all,” stated AGP Awan.
However, Justice Akhtar observed that if the current case is being talked about then no such thing is applicable in this case.
“What you are saying is based on assumptions. Suo motu notice is taken on very important matters,” stated CJP Bandial.
Moving on, AGP Awan said that he had brought a petition seeking the formation of a full court. “It was reported that the Supreme Court had rejected the full court request but it was missing from the order.”
The CJP then noted that the AGP’s arguments were based on assumptions, adding that the court is very careful with suo motu notices.
“In the suo motu notice it is not clear if the other party will come or not. Apart from the speaker’s petition, two judges requested to take suo motu notice,” stated CJP Bandial. He added that the AGP was “polishing things” to his benefit.
The AGP then requested the bench to adjourn the hearing of the case.
However, Justice Akhtar remarked that on the one hand the AGP was asking for a full court and on the other hand he was asking adjournment of the case.
“Make up your mind what you want from the court,” stated Justice Akhtar.
The AGP then repeated that the request for the formation of the full court was not accepted in the first hearing and also on Friday but the order did not mention that it was rejected.
The CJP then clarified that the SC had only stated that they will look into the full court matter later and did not reject the plea.
On the circular issued regarding Justice Qazi Faez Isa’s verdict, CJP clarified that no decision has been withdrawn on the basis of the circular.
The AGP then requested the court to adjourn the hearing till the rules of 184/3 are finalised.
But Justice Ahsan asked how they could adjourn the hearing when the rules have been made for constitutional petitions.
While CJP Bandial stated that the AGP should have demanded the formation of a larger bench instead of a full court. He also asked the AGP to tell the bench if any member of the nine-member bench refused to sit in the case.
“Judges said it is up to the chief justice to include us in the bench or not,” said CJP Bandial. He then added that the March 1 decision was a 3-2 verdict.
“Some judges without listening to the hearing ruled that the petitions cannot be heard. How can the decision of the judges that had separated be implemented,” said CJP Bandial. He added that the decision given without hearing a case has a very limited scope.
The AGP then requested the CJP to review the decision of the four judges but the CJP stated that can only be done if the decision is operational.
Moving on, CJP Bandial asked the AGP that the court had summoned the finance and defence secretaries and whether they were present in the court.
The AGP responded in the affirmative and stated that he had the finance secretaries report.
The CJP stated that security issue was very sensitive and they should hear the two men first and let them go back.
At this point, AGP Awan requested the court for an in-chamber hearing of the case.
But CJP Bandial stated that in such an instance they could provide the court with a sealed copy.
“We are not talking about the army, the armed forces include Air Force and Navy as well,” CJP remarked.
If the army personnel are busy somewhere else then the personnel of air and naval forces and other security agencies can be deployed.
The CJP then asked how much security personnel were needed for election and said that the remaining sensitive details will be heard in chamber.
At this point Defence Secretary Lieutenant General (retd) Mehmood Rehman appeared before the court.
CJP Bandial inquired about the gravity of the security situation in Punjab.
At this the defence secretary said that he will give an in-chamber briefing to the court on Punjab’s security as the enemy can leak information if matters are discussed in the court.
“There is some sensitive information that will be shared in chamber,” Rehman said.
CJP Bandial then asked the secretary if he had brought some sealed files, at which the latter stated that he hadn’t brought them yet but they will be presented in the court.
At this, the CJP asked Rehman to give the files to the bench.
“We will review [the files] and return them. The defence secretary doesn’t need to come to the next hearing,” the chief justice remarked, adding that they will ask in the court if any question come to their mind.
“We do not want to put our forces in any trouble,” Justice Ijazul Ahsan remarked, adding that the court will not let any information leak.
The defence secretary reiterated that he will give a detailed briefing to the court in the chamber.
Meanwhile, PTI’s lawyer Ali Zafar claimed that not much security was needed as the situation in Punjab wasn’t grave.
At this, CJP suggested that the retired army officials and para military forces can also do election duty.
“The situation in the country has been bad for a long time,” CJP Bandial remarked.
Meanwhile, defence secretary asked for time till tomorrow for the submition of reply.
CJP Bandial then directed the official to give a report after a few hours or by tomorrow morning, while ordering finance secretary to inform about the funds.
Informing the court regarding matters of the defence ministry, the secretary defence said that time is required to call the reserve force. He added that the reserve force is also trained.
CJP Bandial said that a large number of soldiers are also deployed at the borders and added that the polls are aren’t taking place tomorrow, as its full schedule is yet to come.
The chief justice asked the defence secretary to identify areas where security situation is sensitive. “The ECP has declared 45 polling stations as sensitive.”
PTI’s counsel Ali Zafar asked why the general elections can’t be held when by-polls have been conducted in the past.
“Do not compare by-polls with general elections,” CJP Bandial responded to him.
The court ordered the secretary defence to submit a report by tonight or tomorrow (Tuesday) morning.
During his turn at the rostrum, PTI Secretary General Asad Umar said that there will be slight difference in the budget deficit if Rs20 billion are given for elections.
“This year’s development budget is Rs700 billion. Rs229 billion will be spent in the first eight months. Special funds will be released to the National Assembly members,” Umar said.
The politician added that the excuse of not providing Rs20 billion to fulfil a constitutional responsibility will be a “joke”.
Commenting on the incumbent government’s spending, CJP Bandial said that Rs229 billion were spent within eight months. “This means cuts have been made but the attention is elsewhere.”
Addressing the additional finance secretary, CJP asked the government not to cut down development budget but to lessen non-development budget.
“The non-development budget entails salaries of employees,” the additional finance secretary said.
The CJP said that the government is taking good measures for economic improvement.
The additional finance secretary presented stated that new taxes were imposed to collect the Rs170 billion.
In response, Justice Akhtar remarked that the finance minister in February said that over Rs500 billion were collected in taxes. “It is estimated that the budget deficit still exists.”
Justice Akhtar further remarked that the government’s deficit on petroleum products was Rs157 billion. He questioned what would have happened if it was Rs177 billion.
Responding to his question, the additional finance secretary said that the deficit was agreed upon with the International Monetary Fund.
The chief justice said that the court will help if there are any legal obstacles to lessening expenses. “Will also ask the Election Commission to cut down expenses.”
He then went on to ask if any financial expert would brief the court on the situation.
The court took a break till 2:30pm.
After resuming the hearing post-break, ECP lawyer Irfan Qadir urged the court to first listen to their arguments.
“The court must take note of the discussion taking place on social media,” he said.
The chief justice, while responding to him, said that the court won’t take suo motu and that the commission must submit application.
“The government is hesitant. It spoke against speaking with anyone and asked the court to decide.”
Justice Ahsan said that elections will never take place if financial reasons are used as an excuse.
AGP Awan said that the government would set aside funds in the next budget for polls.
ECP’s counsel Qadir, during his arguments, said that there was a lot of discussion regarding the three-member bench on social media. “Everyone is talking about the bias of the bench.”
He added that the Pakistan Democratic Movement (PDM) demanded a full court, but its demand was not fulfilled.
“Justice should not only be done, but should also be visible. I don’t see justice being done and this does not mean that [I am] hurting the bench’s dignity,” he said, adding that members of the bench had earlier issued a controversial verdict.
He said that it is important to see whether the decision’s ratio was 3/4 or 3/2. “Nine judges heard the polls case, while four dismissed it and three ordered the election commission. This bench should end the conflict between judges.”
The ECP lawyer further said that the difference between judges is not only internal but also based on the decision. “It is essential for public trust that judges from all sides be included in the bench. one political party’s basic rights cannot be the entire country’s basic rights.”
He maintained that the general and provincial polls have taken place on the same day for the past several years. “Polls should be held simultaneously across the country. It is better for the country’s financial situation.”
The court should leave the matter of conducting elections on the ECP, Qadir said and added that the order for the president to announce polls date in Punjab and for the governor to announce in KP is a violation of the Election Act.
The chief justice said that in his meeting with Justice Qazi Faez Isa, he assumed that the judge won’t be able to be a part of the full court due to his decision. “We will convene a full court session soon.”
Irfan Qadir said that there would have been transparency in the existing bench if it hadn’t included Justice Ahsan.
CJP Bandial told Qadir that he isn’t answerable to him regarding his administrative powers.
“You are not answerable to me, but to the nation,” Qadir said.
“I’m accountable on judicial orders, not on administrative orders,” the chief justice responded.
The ECP lawyer said that decisions have been made public several times in the past before the signatures of the judge were made.
“Show any documentary proof for this,” the CJP told him.
