ISLAMABAD: Prior to delaying the hearing of the PTI petition against the election delay case until tomorrow (Thursday), the Supreme Court on Wednesday demanded assurances from the government that it would take action to lower the feverish political temperature in the nation.
The five-member larger bench, presided over by Chief Justice of Pakistan (CJP) Umar Ata Bandial, engaged in spirited discussion regarding whether the court’s March 1 order was issued with a 4-3 majority or 3-2. A day after the National Assembly passed a tough resolution declaring “undue interference by the judiciary in political matters as a cause of political instability in the country,” confusion arose after the SC resumed the hearing of the election delay case.
The ECP’s order to postpone the elections in Punjab and Khyber Pakhtunkhwa was challenged by Pakistan Tehreek-e-Insaf (PTI) on multiple grounds. Justices Ijaz Ul Ahsan, Munib Akhtar, Amin-Ud-Din Khan, and Jamal Khan Mandokhail are the other members of the bench. Justice Mandokhail clarified his comments from the prior hearing at the beginning of this one, stating that they had “greatly confused” people. The judge stated that one section of the judgment dealt with administrative powers and added, “I stand by my detailed order.” He declared that a judges’ committee would be established by the CJP to study the regulations governing administrative powers.
“In the second part of the verdict, four of us judges rejected the suo motu notice and pleas,” he said, adding that the judgment by the four judges was the order of the court.
He however, stated that this order of the court was not issued by CJP Bandial.
“How did the president give a date when there wasn’t a verdict, how did the election commission issue the schedule,” he asked.
He further stated that they can check the file of court’s records, it doesnt have the order of the court.
“An order of the court is signed by all the judges,” Justice Mandokhail declared.
After this, the lawyers of the ruling alliance proceeded to the rostrum.
Senior lawyer Farooq H Naek requested the court to form a full court for the clarification of the March 1 judgment.
“It is necessary to [fulfill] the requirements of justice that it is decided that whether it was a 3-2 or 4-3 split verdict,” Naek maintained. He said that the entire country’s luck depends on this matter as the nation is stuck in a dilemma.
The matter of jurisdiction should be decided first, Naek added.
At this, CJP Bandial directed the lawyer to submit his request in written and warned against spoiling the court’s environment.
“[We] will decide this matter when there is a petition,” the chief justice said while announcing that the court will hear ECP’s arguments first.
ECP’s lawyer Irfan Qadir appeared before the court upon CJP Bandial’s inquiry.
Starting his arguments, Qadir said that it was his first appearance in the case.
CJP Bandial asked him that ECP had to submit the documents today.
At this, the lawyer said that there was a procedure for that and “why is the court in a rush”.
CJP Bandial then directed him to give his arguments if he hadn’t brought the documents.
“You are superseding other lawyer,” he said.
At this, Qadir said that he was leaving the rostrum and the court can do whatever it wanted and select the lawyer as per its will.
CJP Bandial remarked that Hamid Ali Shah and Sajeel Swati had appeared on behalf of ECP in the previous hearing.
At this, Qadir left the courtroom, with Swati proceeding to the rostrum for arguments.
Moving on Justice Mandokhail asked how did the ECP issue an election schedule when it did not receive the order of the court.
“A Supreme Court order is the order of the court, which wasn’t even issued,” he said. He also asked if the ECP had seen the brief order.
At this, the lawyer maintained that they might have made a mistake in understanding the judgment.
Meanwhile, Justice Akhtar inquired if the brief verdict stated it was a 4-3 split verdict. He said that the March 1 judgment does not state anywhere that it is a 4-3 split verdict.
“Having a difference of opinion is the right of the judge but minority of judges cannot claim to be inclusive of the majority under any law,” Justice Akhtar observed.
He further stated that five judges heard the case in an open court and signed the order after issuing the verdict.
At this point, Justice Mandokhail interjected that the brief verdict stated that the judges gave their dissenting notes.
“The dissenting note clearly stated that [we] agree to the decision of Justice Yahya Afridi and Justice Athar Minallah. Did their decision disappeared into thin air,” he asked.
At this, CJP Bandial interjected that the matter related to the chambers should be left where they belong and said that Attorney General of Pakistan Mansoor Usman Awan will give his arguments on the matter.
However, Justice Mandokhail asked what is the ECP’s stance on the detailed verdict
The lawyer informed the court that he had not taken the electoral body’s directive over the 4-3 split verdict.
The lawyer maintained that the electoral body started implementation on the court’s order as per its understanding and suggested the date as per Section 57 of Election Act after it was received on March 3.
When asked about the time of ECP’s order to postpone polls, the lawyer said that it was issued on the evening of March 22, by the time all the work related to scheduling and nomination papers had been wrapped up.
He then informed the court about army’s refusal of providing security and sensitive agencies reports on terrorist threats in KP.
As CJP Bandial asked if the election commission informed the president about these issues, Swati said that they had.
“Reports about terrorism in KP are serious,” the CJP remarked.
At this, Justice Akhtar remarked that the ECP was relying on the letters of February 8 while the apex court announced the decision on March 8
“In February, you knew that you had to conduct elections in October. Then why was the date of April 30 suggested to the president,” he asked.
At this, ECP’s lawyer maintained that he had referred to the intelligence agencies’ reports as a background but the decision to defer the polls was taken on March 22.
He informed the court that the Finance Ministry told the ECP that they can’t issue funds for polls in the current fiscal year. Moreover, ECP was told that the Punjab Police lacked 297,000 security personnel needed for the polls.
Moving on, Justice Bandial remarked that the elections had to be conducted in 2023 under any circumstances, asking if the funds hadn’t been reserved for it in the annual budget.
At this, AGP maintained that the budget for the polls had to be reserved in the next fiscal year. He added that they did not take into account the early dissolution of assemblies.
Upon CJP’s inquiry, the AGP said that Rs47 billion will be spent if the elections are held altogether in the entire country and Rs20 billion will be spent extra if the provincial elections are held early.
Continuing the arguments, ECP’s lawyer said that political figures were facing security threats, not for the election day but during the election campaign as the militants had been leading terror attacks from Afghanistan since the US withdrawal.
“The information you are giving is of serious nature. Didn’t you bring all of this in the president’s notice,” CJP Bandial asked. It was ECP’s fault if the president hadn’t been informed on this because the president gave the election date with the commissions advice, he added.
Moreover, the ECP’s lawyer informed the court that the operations in Punjab’s kaccha area would take six months to complete.
Meanwhile, CJP Bandial remarked that the issue of terrorism was genuine. He, however, said that the elections had been conducted in the country despite this issue being present for the last 20 years.
“Polls had been conducted thrice in the 90s decade when sectarianism and terrorism was on its peak,” he added.
He observed that the ECP suggested the dates without stating these facts to the president.
Besides, Justice Akhtar inquired if the ECP would organise the polls if the institutions provide assistance to it.
“Apparently, entire case of the ECP was based on the letters [threat alerts], while non-availability of the funds is also an issue,” he observed.
After this, the court adjourned the hearing for a while.
Once the hearing resumed after the break, the ECP lawyer informed the bench that the new date — October 8 — was not temporary. He further added that the security agencies feared that if elections are held in some areas then terrorists would target those specific areas.
“The security agencies have said that arrangements will be completed by the date (October 8),” said the ECP lawyer.
On this point, Justice Akhtar remarked that it’s the ECP’s responsibility to carry out elections and how can it run away from it. He added that if the ECP had any issues it should have come to the court.
“Election Commission should clarify why it differed the polls by six months,” said justice Akhtar.
While Justice Mandokhail observed that the ECP’s authority to conduct elections starts when an election date is set.
On this, the ECP lawyer responded that if the date is fixed, the ECP has the authority to extend it.
However, Justice Ahsan remarked that the ECP can change the election programme but not the date of the polls.
“Is Section 58 of the Election Act above the constitution?” asked the judge.
On the other hand, CJP Bandial agreed with Justice Akhtar that ECP should have contacted the apex court, and asked the lawyer to convince the bench by today.
“Is October 8 a magical date that guarantees that everything will be alright?” asked the CJP, wondering why the election date could not be September 8 or August 8.
Earlier, the SC Registrar’s Office accepted the separate pleas of Pakistan Muslim League-Nawaz (PML-N), Pakistan Peoples Party and Jamiat Ulema-e-Islam-Fazl (JUI-F) to become parties in the case.
The coalition government had decided to become a party in the case a day earlier.
The members of the ruling alliance had filed the pleas in the SC to become a party and will present their stance when the hearing resumes.
