Three-member bench headed by CJP Bandial announces verdict, directs federal govt to issue funds for polls.
ISLAMABAD, APR 4: The Supreme Court ruled on Tuesday that the Election Commission of Pakistan’s (ECP) decision to postpone polls to the Punjab Assembly till Oct 8 was “unconstitutional” and fixed May 14 as the date for polls in the province.
“The impugned order dated 22.03.2023 made by the Election Commission of Pakistan is declared to be unconstitutional, without lawful authority or jurisdiction, void ab-initio, of no legal effect and is hereby quashed,” the ruling said. “Neither the Constitution nor the law empowers the Commission to extend the date of elections beyond the 90 days period as provided in Article 224(2) of the Constitution.”
The ECP had on March 22 announced that the elections in Punjab would be held on October 8. The date was earlier set on April 30, in consultation with the president.
The reserved verdict was issued today by a three-member bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprising Justice Munib Akhtar and Justice Ijazul Ahsan.
In the written verdict, a copy of which is available with Dawn.com, the top court restored the election schedule issued by the ECP on March 8 with certain modifications.
The changes made by the court in the election programme are:
The last date for filing appeals against decision of the returning officer rejecting/accepting the nomination papers is April 10
The last date for deciding on appeals by the Appellate Tribunal is April 17
The revised list of candidates will be published on April 18
April 19 will be the last date for the withdrawal of candidature and publication of the revised list of candidates
Electoral symbols will be allotted to contesting candidates on April 20
Polling will be held on May 14
The court noted that during the course of hearings, the ECP had categorically stated that if it was provided with necessary aid and assistance by the executive authorities in the provinces and Centre, then the commission would be able to organise and conduct the general elections to the Punjab and Khyber Pakhtunkhwa (KP) assemblies honestly, justly and fairly.
Keeping this in view, the court directed the federal government to release election funds worth Rs21 billion to the ECP by April 10 for elections to the assemblies of Punjab and KP.
“The Commission shall, by April 11, file a report in the court stating whether the said funds have been provided and received and if so, whether in full or in part. The report shall be placed before the members of the bench for consideration in chambers.
“If the funds have not been provided or there is a shortfall, as the case may be, the court may make such orders and give such directions as are deemed appropriate to such person or authority as necessary in this regard,” the SC order said.
It directed the ECP to utilise the funds for elections to the Punjab Assembly in the first instance and added that if there was a shortfall in funds for polls in KP later, the ECP “may make an appropriate representation to this court for such consideration and orders as deemed appropriate”.
The court also instructed the Punjab caretaker government, inspector general and chief secretary (security) to provide the electoral body with a security plan by April 10.
“Furthermore, in any case, the Government of Punjab and all officials thereof must, in the discharge of constitutional and legal duties and responsibilities, proactively provide all aid and assistance to the Commission for the holding and conduct of the general election,” the apex court verdict said.
It went on to say that the federal government, in the discharge of its constitutional duties, was bound to provide aid and assistance to the ECP as required by it for holding elections in Punjab and KP.
“Without prejudice to the generality of the foregoing, the federal government must make available all necessary personnel, whether from the Armed Forces, Rangers, Frontier Constabulary and all other forces under the direct, indirect or ultimate command and control of the said Government, as are required by the Commission for security and other purposes related to the general elections.”
In this regard, the federal government should provide a plan to the ECP by April 17, the SC stated.
It warned that if the Centre or the Punjab caretaker government failed to provide aid and assistance to the ECP, the commission could approach the court and an appropriate order would be passed on the matter.
Referring to elections in KP, the SC recalled that the counsel of the KP governor had withdrawn from appearance in court “on account of a certain stand taken by a political party which learned counsel was also representing”.
“The Governor, KP province, therefore, ceased to have representation before the court,” it maintained, pointing out that the matter on elections in KP was not adjudicated upon. “Permission is granted to the petitioners to file such petition and/or seek such relief before such forum as is deemed appropriate.”
The top court also mentioned its March 1 verdict in today’s order. In a 3-2 order last month, the SC had ruled that elections in KP and Punjab should be held within 90 days.
However, the government had disputed the court directions, calling the verdict 4-3 instead after Justice Jamal Khan Mandokhail and Justice Syed Mansoor Ali Shah — who were among the four judges who had written additional notes — raised objections on the constitution of the bench as well as the invocation of the apex court’s suo motu jurisdiction by the chief justice.
In its verdict today, the court said: “Respectfully, the position as claimed by the learned Judges in minority is erroneous and not sustainable in law.”
The SC further maintained that the March 29 judgement issued by Justice Qazi Faez Isa and Justice Aminuddin Khan did not have any effect on any observations made in today’s order.
In the 12-page order, the judges had called for the postponement of suo motu matters until amendments were made to Supreme Court Rules 1980 regarding the country’s top judge’s discretionary powers to form benches.
The SC’s much-anticipated decision on the PTI petition was announced by the top judge in Court Room 1 where coalition leaders, journalists and lawyers were in attendance. Outside the apex court’s building, heavy security was deployed with a large contingent of police guarding the main entrance.
Political crisis will further aggravate: law minister
In a press conference shortly after the verdict was announced, Law Minister Azam Nazir Tarar lamented the ruling and said the SC should have made a decision with “collective wisdom”. “The full court should have heard the case,” he added.
Law Minister Azam Nazir Tarar addresses a press conference in Islamabad on Tuesday. — DawnNewsTV
The minister foresaw that the “current political situation and crisis will further aggravate”.
He said ECP lawyers and other stakeholders had argued that the court should first decide on the March 1 verdict — which was “rejected 4-3 […] a full court should have cleared this confusion.”
He said the cabinet would discuss the matter in its meeting today.
Earlier today, Interior Minister Rana Sanaullah had said that elections should be held in the country simultaneously, adding that separate polls to provincial assemblies will only create anarchy, chaos and further political crises.
PTI calls verdict a ‘watershed moment’
Meanwhile, PTI vice-chairperson Shah Mahmood Qureshi congratulated the nation and said: “Today, the Supreme Court has buried the doctrine of necessity, restored the sanctity of the Constitution and buried all those conspiratorial forces that were creating hurdles in the way of democracy and a democratic and constitutional system in this country.”
PTI’s Shah Mahmood Qureshi and Barrister Ali Zafar talk to media persons outside SC on Tuesday. — DawnNewsTV
Speaking to the media outside the SC, he said today was a very important day in Pakistan’s political history. “I will call it a watershed moment,” he added.
Qureshi further said that today a clear distinction was made between democratic and constitutional forces and unconstitutional forces.
The PTI leader went on to say that the chief election commissioner was also now free to hold elections. “His hands that were bound are free now … He used to speak of [a lack of] resources and security personnel, but all of that is available now.
“The Supreme Court has freed them of all pressures and told them that it is their constitutional responsibility to hold free, fair and credible elections. They should fulfil their constitutional responsibility now,” he added.
Separately, PTI’s Fawad Chaudhry praised the CJP for the order, calling him a “people’s chief justice”.
“Very few people have the privilege to get the amount of respect that has come towards Justice Bandial and his fellow judges today,” he said.
‘SC has solved the lesser of the crises it is in’
Speaking to Dawn.com, legal expert Barrister Asad Rahim said that despite extraordinary pressure, the SC had done its duty to the law and Constitution, and singlehandedly kept democracy alive.
“It is a good day for the rule of law, and for Pakistan as a federation,” he said, adding that it now fell on the state – and the people – to make sure the judgment was enforced.
Lawyer Abdul Moiz Jaferii told Dawn.com that by declaring the ECP decision to delay polls till October illegal, the Supreme Court has “solved only the lesser of the crises it was involved in”.
“The greater crisis is of the court’s own making, and the CJP’s failure to build consensus amongst his colleagues leaves it unresolved. It is this failure to form a full court and exhibit a united front which has allowed for the government to issue the threats it has subtly conveyed over the weekend. These threats will only get louder now that the expected decision has been announced.”
He added that the government has repeatedly attempted to argue that the scheme of the Constitution requires the federal and provincial elections to be held concurrently.
“This is rooted in the government finding this politically expedient rather than any consistent respect for the constitutional rule as their commentary about the Supreme Court bench reflects,” Jaferii said.
“As they are facing a likely defeat due to Imran Khan’s surging popularity; it is likely that they will try their best to delay the implementation of this order through a steady drip of creative excuse-making,” the lawyer added.
Lawyer Basil Nabi Malik said doing the right thing the wrong way did not resolve issues, it only created new ones. “And that is precisely what this decision has done.”
Barrister Rida Hosain said that against all the odds, the Constitution had prevailed in Pakistan today.
“A simple but crucial constitutional command has been unequivocally enforced. The order of the ECP altering the date of the elections to 8 October has been declared unconstitutional and without lawful authority by the Supreme Court.
“The government raised arguments about lack of funds and the security situation in the country to justify the delay in the elections. These arguments were rejected by the Court and along with it the doctrine of necessity remains in the history books where it belongs,” she told Dawn.com.
Hosain said that in a country that had seen persistent interference in the democratic process, it was about time that the process was allowed to continue and flourish.
“This time, the Court has not left it to the ECP and the President to come up with it a date. It has given one: 14 May 2023,” the lawyer added.
Diminished bench
The hearings in the case, which lasted over a week, witnessed high drama after two judges of the original five-member bench — Justices Aminuddin Khan and Jamal Khan Mandokhail — recused themselves from hearing the case, laying bare the cracks within the SC.
Thereafter, the bench was reconstituted with the remaining judges: CJP Bandial, Justice Ahsan and Justice Akhtar.
However, the coalition government — which had been demanding a full court to hear the case — raised reservations on the bench. In a National Assembly meeting yesterday, Prime Minister Shehbaz Sharif categorically said the ruling coalition had no confidence in the three-member SC bench.
Law Minister Azam Nazir Tarar had also called on the top court judge to “get your hours in order”.
Last week, parties in the coalition government issued a joint statement which said that “a complete distrust had been shown in the three-member bench of the SC comprising CJP Bandial, Justice Ijaz-ul-Ahsan and Justice Munib Akhtar”.
“The huddle demands wrapping up [of] the three-member bench’s proceedings regarding the delay in elections to the Punjab Assembly forthwith,” it had said.
It had pointed out that there had been a “clear division in the SC, therefore it should refrain from issuing controversial political decisions”.
Earlier this month, the government also moved the Supreme Court (Practice and Procedure) Bill 2023 to the National Assembly and Senate. The proposed law aims to deprive the office of the CJP of powers to take suo motu notice in an individual capacity. While both houses have passed the bill, it is yet to be approved by the president.
Debate over election date order
During the proceedings, a debate was also held on the SC’s March 1 verdict regarding elections in Khyber Pakhtunkhwa and Punjab.
The apex court, had in a 3-2 verdict, ruled on March 1 that elections in Khyber Pakhtunkhwa and Punjab — both of which have been under caretaker governments since the provincial assemblies were dissolved in January — should be held within 90 days.
The government, however, had disputed with the court directions, calling the verdict 4-3 instead after Justice Jamal Khan Mandokhail and Justice Syed Mansoor Ali Shah — who were among the four judges who had written additional notes in the Feb 23 order — raised objections on the constitution of the bench as well as the invocation of the apex court’s suo motu jurisdiction by the chief justice.
Arguments over this contention were made by Attorney General for Pakistan (AGP) Mansoor Awan during the hearing. However, the CJP brushed aside the 4-3 controversy and said nobody had recused from the nine-judge bench, besides all judges had requested him to reconstitute the bench.
The CJP had also rubbished the concept of order of the day in case of dissenting judgement by asking the AGP to come up with any law requiring the issuance of an order of the court.
PTI petition
PTI’s petition, moved by party’s Secretary General Asad Umar, former Punjab Assembly speaker Mohammad Sibtain Khan, former Khyber Pakhtunkhwa Assembly Speaker Mushtaq Ahmad Ghani and ex-lawmakers of Punjab Abdul Rehman and Mian Mahmoodur Rashid, pleaded that the ECP’s decision violated the Constitution and tantamount to amending and subverting it.
In the petition, PTI had sought directions for the federal government to ensure law and order, provisions of funds and security personnel as per the ECP’s need to hold the elections.
It also requested the court to direct the Khyber Pakhtunkhwa governor to announce the date for elections to the provincial assembly. Last week, KP Governor Ghulam Ali also proposed Oct 8 as the date for elections in the province. Earlier, he had announced May 28 as the date for polls.
The PTI questioned the ECP’s authority to “amend the Constitution” and asked how it could decide to delay elections to any assembly beyond the period of 90 days from the date of dissolution of the said assembly as mandated by the Constitution.
The petition argued that the ECP was bound to obey and implement the judgments of the Supreme Court and had no power or jurisdiction to overrule or review them.
In its March 1 verdict, the Supreme Court ordered to hold the election to the Punjab Assembly within 90 days and that the date be announced by the president. It also directed the authorities to provide funds and security personnel to ECP for the elections, the petition recalled.
The ECP cannot act in defiance of the Supreme Court’s directions as it has done in this case which was illegal and liable to be set aside, the petition pleaded. By announcing Oct 8 as the date, the ECP has delayed the elections for more than 183 days beyond the 90-day limit as prescribed in the Constitution.
The petition said that if the excuse of unavailability of security personnel was accepted this time, it would set a precedent to delay any future elections.
The petition added that there was no assurance that these factors — financial constraints, security situation and non-availability of security personnel — would improve by Oct 8.
The “so-called excuse” would mean the Constitution could be held in abeyance every time elections were due, the petitioners feared adding that in the past similar situations have persisted, but elections were held despite them.
These situations can’t be used as excuses to “subvert” the Constitution and deny people their right to elect representatives.
“Not holding elections in case of threats by terrorists will amount to giving in to the threats, which is in fact the aim of all terrorist activities,” the petition explained.
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