A three-member bench of the Supreme Court led by Chief Justice of Pakistan (CJP) Umar Ata Bandial on Monday completed proceedings of a case related to a delay in elections for the Punjab and Khyber-Pakhtunkhwa assemblies, reserving its verdict, which it said will be announced tomorrow (Tuesday).
The verdict was reserved after hearing all the parties, including the counsels of the ruling coalition, the PTI, the ECP and others. The hearings lasted over a week and saw two judges recuse themselves from proceedings, leaving just a three-member bench to complete hearings after initially starting with a five-member bench.
Earlier, when hearings into the case resumed, the CJP asked Farooq H. Naek, representing the Pakistan Peoples Party (PPP), whether the parties comprising the government were boycotting proceedings or becoming a party to them. At this, Naek said the proceedings were not being boycotted as yet. “Do your consultations and tell us. Tell us in writing that you have not boycotted the hearing,” he said, referring to media reports that the ruling alliance had decided to boycott the proceedings. Naek then clarified that the government had concerns with the makeup of the bench—which includes Justices Munib Akhtar and Ijazul Ahsan—but would not be boycotting proceedings.
The PMLN’s lawyer, Akram Sheikh, similarly said his party had objections to the bench hearing the case but they were not boycotting the proceedings yet. To this, Justice Akhtar questioned how arguments could be presented to a bench that the parties did not have any confidence in.
The CJP then asked Attorney General for Pakistan (AGP) Mansoor Usman Awan to share instructions he had received from the government to which he was told that governments operate according to the Constitution and the Election Commission of Pakistan (ECP) has the power to defer polls. To this, Justice Ahsan questioned how the ECP could change the date after the Supreme Court had made its decision. “The Supreme Court’s decision is applicable to everyone including the executive,” he said.
AGP Awan then noted that the president had been directed to give a date for polls in Punjab, while the governor had been tasked with giving a date for KP. He noted that the KP governor had yet to fix a date for the polls. “The law does not allow anyone to delay elections. Only the court can defer the election date,” responded CJP Bandial, recalling that polls were postponed by the court in 1988 as well. Maintaining that the order of March 1 had already been implemented, he said the issue with it was merely a difference of opinion among judges.
Noting that the suo motu had started with a nine-member bench, the AGP said two dissenting notes had come forward, while the court order was yet to be issued. “Are you saying that I did not form a new bench and the original one is still intact?” asked the CJP. “In our opinion, the majority of the judges have rejected the suo motu notice,” said the AGP.
While the CJP remarked that no one had disagreed with the view that he had the authority to form benches, Justice Ahsan said this power was administrative and not judicial. “The case was heard on merit,” he said, with the AGP recalling that Justice Athar Minallah’s note had said that “if the chief justice wishes he can include him on the bench.” To this, Justice Akhtar said this had proven that it was the chief justice’s prerogative to form a bench.
“The detailed dissent note does not include the point of reconstitution of the bench,” added CJP Bandial. The AGP then said that the note stated the reconstitution of the bench was an administrative measure, and that Justices Ahsan and Naqvi had recused themselves from the case. The CJP remarked that after their opinion was secured, a new bench was formed and the hearing resumed.
At this, AGP Awan stated that as per the opinion of four judges, the suo motu notice was dismissed. However, the CJP said the government’s lawyer had failed to convince them on this point, adding that Justice Isa’s order was not clear. “The order of any bench of the Supreme Court applies to all,” stated AGP Awan.
The AGP then once again sought the formation of a full court, noting that the order did not specify that an earlier plea had been rejected by the bench. The CJP clarified that the SC had only stated that they would look into the full court matter later and did not reject the plea. On the circular issued regarding Justice Isa’s verdict, the CJP clarified that no decision has been withdrawn on the basis of the circular.
The AGP then requested the court to adjourn the hearing until rules pertaining to Article 184(3) had been finalized. However, Justice Ahsan asked how they could adjourn the hearing when the rules have been made for constitutional petitions.
The CJP then said the AGP should have asked for a larger bench, rather than a full court. “The judges said it is up to the chief justice to include us in the bench or not,” he said, adding 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,” he said, with the AGP requesting the CJP to review the decision of the four judges. However, the CJP said that could only be done if the decision were operational.
During the proceedings, the AGP urged the bench to allow the secretary of defense an in-chamber hearing, stressing that security was a sensitive matter and there were fears of “enemies” benefiting from a public hearing. To this, the CJP said the court could be provided with a sealed document. “We are not just talking about the Army, the armed forces include Air Force and Navy as well,” he said, adding that other security agencies could be deployed for poll duties.
The court then allowed the defense secretary until Tuesday morning to submit a report with confidential information on the security situation in Punjab.
Meanwhile, PTI’s lawyer Ali Zafar claimed security was not a grave concern in Punjab. At this, the CJP suggested that retired Army officials and paramilitary forces could also do election duty. “The situation in the country has been bad for a long time,” he remarked, while turning to the finance secretary for details on the funding situation. He asked the official to reduce the non-development budget to make space for funding required for elections. “The non-development budget entails salaries of employees,” the additional finance secretary said.
Justice Akhtar then questioned the budgetary deficit, questioning how the government would tackle it if it rose by Rs. 20 billion. The additional finance secretary said the deficit had been agreed upon with the International Monetary Fund. “Can the salaries [of government officials] not be reduced?” the CJP asked, suggesting this could start with judges. “The ECP would also be told to cut down their expenses,” CJP Bandial added. “Which financial expert will brief the court [on this]?” At this, PTI leader Asad Umar briefed the court, claiming that the Rs. 20 billion required for elections would not hamper the IMF program.
ECP counsel
After the two secretaries’ briefings were concluded, ECP lawyer Irfan Qadir started his arguments, maintaining that the public’s perception of bias within the judiciary was coming from the bench. He stressed that all coalition parties had requested for a full court to hear the case but their plea was not accepted. “Justice by the courts should be visible,” he said, regretting that justice was not being seen as being dispensed.
He said the decision to announce the election date should rest with the ECP and then said a discussion was needed on whether the March 1 decision was 3-2 or 4-3. Noting that four of the nine judges had dismissed the case, while three of them had issued orders, he maintained that the ruling had been a minority judgement and called on the apex court to resolve differences.
Arguing that the dispute over the proportionality was not an internal matter, he said the four judges who had dismissed the plea should be included in the current bench. “The effect of a judicial order cannot be undermined by a circular,” he said, adding this was “imperative for the public to trust the judiciary.” Arguing that the national interest falls in implementing the law and Constitution, he emphasized that polls to all the assemblies should be held simultaneously, which would also save money. “It is mandatory to have a caretaker government during the National Assembly elections. The provincial assemblies were dissolved two months ago and not two years ago,” he added.
The ECP lawyer also argued that the KP governor had issued a date for polls in the province, adding that the apex court granting the president this authority was in violation of law. “The president cannot take any decision independently,” he said, noting that the president was bound by the prime minister and cabinet’s advice on all matters. “The order given to him regarding giving a date for elections was unconstitutional,” he contended.
“As per the Election Act, the president only has authority when it comes to the general elections,” he said, reiterating that general elections should be held throughout the country at the same time.
To Qadir’s repeated requested for the CJP to resolve the “internal matters” of the court, Bandial said he would “soon” call a full court meeting to amend the rules.