–Judges express divergent views on SC March 1 order
–PML-N, PPP, JUI move apex court to become party in the case
ISLAMABAD, The Supreme Court of Pakistan Wednesday adjourned the hearing of the Pakistan Tehreek-e-Insaf (PTI) petition regarding delay in the elections in Punjab and Khyber Pakhtunkhwa till Thursday.
During the hearing of the case on Wednesday, Chief Justice Umar Ata Bandial remarked that other state institutions are being affected by tension among political forces. “We will ask the government whether the period of six months can be reduced or not,” he observed.
The ECP lawyer told the Supreme Court that the commission has the authority to extend the poll date under the election programme.
The Supreme Court on Wednesday resumed hearing PTI petition challenging the Election Commission of Pakistan’s decision to postpone elections in Punjab and Khyber Pakhtunkhwa a day after the National Assembly passed a resolution asking the apex court to “refrain from interfering in political and administrative affairs” and called for the formation of a full SC bench to hear constitutional matters.
The resolution moved by Minister for Information Marriyum Aurangzeb stated that the ECP is a constitutional body and any trespassing in its domain should be avoided and let the commission hold polling in a conducive environment as per its prerogative.
It said that the House considers undue interference by the judiciary in political matters as a cause of political instability in the country. The House validates the four judges’ decision in the suo-moto case and calls for its implementation. It expects that the higher judiciary will refrain from interfering in political and administrative matters.
Earlier, the ‘Supreme Court (Practice and Protection) Bill, 2023’ was introduced in the House. The bill later was referred to the NA Standing Committee which has been approved today.
A larger five-judge SC bench headed by Chief Justice of Pakistan Umar Ata Bandial and comprising Justice Ijaz-ul-Ahsan, Justice Munib Akhtar, Justice Aminuddin Khan and Justice Jamal Khan Mandokhail is hearing the petition.
During yesterday’s hearing, Chief Justice Bandial remarked that the ECP did not have any right or legal backing to extend the election date till Oct 8 and asked the Attorney General for Pakistan (AGP) to get instructions from the federal government in this regard.
The apex court is likely to conclude the hearing today and come up with a final judgement.
At the outset of the hearing today, lawyer Farooq H Naek requested the court to form a full court bench. He further said that first of all, it should be decided whether the SC decision was 3-4 or 2-3.
On this, Chief Justice Bandial told him off saying ‘don’t disturb the court’s atmosphere’. He asked Naek to submit his written request to the court.
Naek also requested the court to name his party respondent in the case.
On this, CJP Bandial asked him which party he wanted to represent –PDM or PPP.
Naek said that the PPP was not a part of the PDM.
The chief justice said that first, the court would hear arguments from the ECP’s lawyer.
During the hearing, Justice Mandokhail clarified his remarks while referring to the SC’s March 1 judgement regarding elections in KP and Punjab. He said that four judges had “dismissed” the proceedings.
He remarked that he stood by his detailed order. He said one part of the judgement was related to the administrative power in which the CJP would be asked to appoint a judges’ committee which would look into the rules of administrative powers. While in the second part, we, the four judges, rejected the suo motu notice and pleas. He said 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 the chief justice of Pakistan.
“How did the president give a date when there wasn’t a verdict, how did the election commission issue the schedule,” he wondered adding an order of the court is signed by all the judges.
Last month, the CJP had taken a suo motu notice on elections in the two provinces and formed a nine-member bench. However, the bench was split into a five-member bench after Justice Mansoor Ali Shah, Justice Yahya Afridi, Justice Mandokhail and Justice Athar Minallah raised objections over the suo motu proceedings and recused themselves.
The SC had also issued a written order, which was dictated in the open court on Feb 23 when Justice Mandokhail objected to the initiation of the proceedings under Article 184(3).
Signed by nine judges, the written order of the bench had stated that keeping in view the Feb 23 order, the additional notes attached by four judges, the CJP’s direction to add questions raised by Justice Shah, Justice Afridi, Justice Mandokhail and Justice Minallah, as well as discussions/deliberations made in the anteroom of the apex court, the matter was referred back to the top judge.
In response, the CJP reconstituted the bench comprising himself, Justice Shah, Justice Akhtar, Justice Mandokhail, and Justice Mazhar. Those who dissociated themselves from the hearing included Justice Ahsan, Justice Afridi, Justice Naqvi, and Justice Minallah.
On March 1, the SC, in a 3-2 verdict, directed the ECP to consult with President Arif Alvi for polls in Punjab and Governor Ghulam Ali for elections in KP. However, earlier this week, Justice Mandokhail and Justice Shah cast doubt on the judgement handed down in the March 1 suo motu, saying that the proceedings stood dismissed by a majority of 4-3.
Then the CJP asked the ECP lawyer to start his arguments.
Irfan Qadir came to rostrum to represent the ECP. But the chief justice asked him to first submit his documents, adding that he was superseding other lawyers.
CJP Bandial remarked that Hamid Ali Shah and Sajeel Swati had appeared on behalf of ECP in the previous hearing.
Irked by the CJP’s remarks, Irfan Qadir left the court.
After he left, ECP lawyer Swati started giving his arguments.
Judges express divergent views on SC March 1 order
Justice Mandokhail asked Swati whose orders the election commission had followed.
He replied that the commission followed the SC’s March 1 order and reached out to the President who announced April 30 as date for election in Punjab. He said after that, the ECP issued schedule and started preparations for holding elections.
On this, Justice Mandokhail inquired of the ECP counsel had he read the brief order given by him and Justice Mansoor Ali Shah in the March 1 ruling.
The lawyer became sheepish and said that they might have made a mistake in comprehending the judgement.
Justice Akhtar inquired if the brief order stated that the March 1 verdict was passed in a 4-3 majority, noting that the same wasn’t written “anywhere in the SC’s March 1 order”.
Justice Akhtar further stated that five judges had heard the case in open court and signed the decision.
But, Justice Mandokhail stressed that the brief order stated that dissenting notes had been written.
At this point, the chief justice interrupted and said: “Let the matter of our chambers stay there.”
However, Justice Mandokhail asked what the position of the election commission was after the detailed decision.
Swati replied that no instructions were taken from the election commission on the 4-3 decision.
Justice Akhtar remarked that both judges were honourable, but a minority decision could not prevail over a majority decision.
The chief justice again instructed the ECP lawyer to continue presenting his arguments.
The ECP lawyer said that if the commission gets assistance from the institutions and funds from the government, then it would be ready to hold elections in Punjab.
Justice Akhtar remarked that the ECP calls itself a constitutional institution. Holding election is ECP’s responsibility as two assemblies have been dissolved, he said adding that the commission issued election schedule, then suddenly changed its decision.
Article 218 could be invoked in this case, the judge added.
The ECP lawyer said that the commission is not running away from performing its duties. He said that the commission has the authority to alter poll date under the election programme.
Justice Ahsan remarked that election programme and elections are two separate issues. He asked the lawyer to explain to the court under which law, the commission could change the date announced by the President or the Governor.
The ECP lawyer further highlighted the security concerns. He said that the armed forces refused to provide security. He said that under Article 17, the elections should be conducted in a transparent, peaceful and conducive environment.
He said that the commission was provided a secret intelligence report according to which there was a presence of terrorist outfits such as the Tehreek-e-Taliban Pakistan and Sindhudesh, in Bhakkar and Mianwali.
He went on to say that the ECP had requested more than 400,000 security personnel for polls duty, but was facing a shortage of 298,000 personnel.
Justice Akhtar, however, pointed out that the ECP lawyer was revealing the contents of the intelligence report issued on Feb 8. He said the court issued its order on March 1. He wondered if the commission thought of delaying election till October in February.
The ECP lawyer said that in a letter on Feb 8, the Interior Ministry had raised security concerns. He went on to say that the ministry had also warned of attacks on political personalities, including Imran Khan. And these threats are not just for the election day but also during the electoral campaign.
The lawyer insisted that the polls could not be held in the absence of security personnel.
CJP Bandial remarked that this was a very serious situation. He asked the ECP lawyer had the commission conveyed these points to the President. If you had not told the President, then it’s your mistake, the top judge added.
He said that the President announced the date with the consultation of Pakistan.
The CJP said that the secret report stated that it would take six months to clear the areas. He asked how long it would take to clear the riverine (kuchha) area in Punjab.
Sajeel Swati replied that it would take 6 months.
CJP Bandial remarked that the issue of terrorism was genuine. He, however, said that the elections were still conducted in the country despite the fact that terrorism had been there for the last 20 years.
“Polls had been conducted thrice in the 1990s 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.
The Registrar Office of the Supreme Court on Wednesday received a joint application of Pakistan Muslim League-Nawaz, Pakistan People’s Party and Jamiat Ulema-i-Islam to become a party in the case about delay in Punjab and Khyber Pakhtunkhwa elections.
The Registrar Office earlier declined to accept the joint application advising parties to submit it during the proceedings of the case today but later it changed its mind and agreed to receive it.
Earlier, there were reports that Prime Minister Shehbaz Sharif may attend today’s proceedings at the Supreme Court but after holding a meeting with Attorney General of Pakistan (AFP) Mansoor Usman Awan at the PM House on Wednesday morning the premier decided not to go to the apex court, sources said.
According to the sources, Prime Minister Shehbaz has directed the members of federal cabinet to reach the apex court at 11:30am today.
While talking to the media outside the Supreme Court, the interior minister said that the Election Commission of Pakistan (ECP) had the power to extend the date of elections, adding that the decision of the Supreme Court could not be an internal matter.
“A full bench and a larger bench should be formed to remove the ambiguity. We want justice from the Supreme Court,” he stated.
While coming down hard on Pakistan Tehreek-e-Insaf Chairman Imran Khan, Rana Sana said that ‘Fitna Khan’ was leading the country to chaos, adding that he had been working on the same agenda since 2014.
“We have come to the door of the Supreme Court for justice. When the ground is prepared, it will be known who is popular and how much,” he pointed out.
JUI leader Maulana Abdul Ghafoor Haideri said that it was the responsibility of the Parliament to remove the loopholes in the law and Constitution.