Wednesday, March 29, 2023
ISLAMABAD: The Supreme Court on Wednesday asked for the government's assurance it would take steps to lower the feverish political temperature in the country, before adjourning the hearing of the PTI petition in the election delay case till tomorrow (Thursday).
During today's hearing, the five-member larger bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, hotly debated whether the court's March 1 order was given with a 4-3 majority or 3-2.
The confusion emerged after the SC resumed the hearing of the election delay case today, a day after a hard-hitting resolution was passed by the National Assembly holding “undue interference by the judiciary in political matters as a cause of political instability in the country”.
Pakistan Tehreek-e-Insaf (PTI) has filed a petition against the ECP's March 22 order postponing the elections in Punjab and Khyber Pakhtunkhwa citing multiple reasons.
The bench comprised Justice Ijaz Ul Ahsan, Justice Munib Akhtar, Justice Amin-Ud-Din Khan and Justice Jamal Khan Mandokhail as members.
At the outset of the hearing, Justice Mandokhail clarified his remarks from the previous hearing, saying that it had caused “great confusion”.
"I stand by my detailed order," the justice said, explaining that one part of the judgment was about the administrative powers.
He said that the CJP would be asked to form a judges' committee to look into the rules of administrative powers.
Yesterday, he had remarked that the number of judges who favoured the March 1 ruling was an internal matter of the apex court.
"In the second part of the verdict, four of us judges rejected the suo motu notice and pleas," he said, adding that the judgement by the four judges was the order of the court.
He, however, stated that this order 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.
"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 judgement.
"It is necessary to [fulfil] 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 fate depended on the matter as the nation is stuck in a dilemma.
At this, CJP Bandial directed the lawyer to submit his request in writing 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 counsel Sajeel Swati asked how the commission could 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 judgement.
Meanwhile, Justice Akhtar inquired if the brief verdict stated it was a 4-3 split verdict. He said that the March 1 judgement does not state anywhere that it is a 4-3 split verdict.
"Having a difference of opinion is the right of the judge but the 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 disappear into thin air," he asked.
At this, CJP Bandial interjected that matters related to the chambers should be left where they belong and said that Attorney General of Pakistan Mansoor Usman Awan would give his arguments on the matter.
However, Justice Mandokhail asked what the ECP’s stance on the detailed verdict was.
The lawyer informed the court that he had not taken the electoral body's directive over the 4-3 split verdict.
The lawyer further 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 the 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.
The ECP’s legal representative highlighted the security concerns in the country and informed the court about the army's refusal to provide security during the polls and the agencies' reports on terrorist threats in KP.
As CJP Bandial inquired if the election commission had 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, the 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 further 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, and asked why funds hadn't been reserved for it in the annual budget.
At this, the AGP maintained that the budget for the polls had to be reserved for the next fiscal year. He added that they did not take into account the early dissolution of assemblies.
Upon the 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.
The ECP's lawyer also reiterated the security threats faced by public and political leaders due to rising terror attacks.
"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 of this because the president gave the election date with the commission’s advice, he added.
Moreover, the ECP's lawyer informed the apex court that the operations in Punjab's kaccha (riverine) area would take six months to complete.
CJP Bandial acceded that the issue of terrorism was genuine. However, he pointed out that the issue was not new.
"Polls had been conducted thrice in the 90s when sectarianism and terrorism were at their peak," he said.
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, the ECP’s entire case 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, 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. He added that if the ECP had any issues it should have come to the court.
“The 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 the 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.
On being probed by the bench on the election date was set for April when the commission was already aware that it would not be possible, the ECP’s counsel said that they had been unaware of the sensitivity of the matter.
Justice Amin-Ud-Din Khan then chided the commission’s counsel, saying that the president had not been apprised of the matter, even though it was the ECP’s duty to do so
The chief justice further pointed out that the new election schedule had not been announced.
In response, the ECP’s counsel argued that the law not only guaranteed free and fair elections but also guaranteed protection of life.
“The court can annul the ECP’s order only if it is unconstitutional and based on malice,” he argued.
On being asked if the petitioner had raised the point of malice, ECP’s counsel Sajeel said it was not.
Justice Munib reiterated the responsibility of the ECP in holding fair and timely elections. He further inquired if the ECP would withdraw from its responsibility of holding elections if all the assemblies were dissolved.
The ECP counsel said that were the funds and security to be arranged for, the elections could be held on April 30.
“In 1988, elections were delayed by the order of the court. In 2008, the situation was such that no one objected to postponing the elections, we pray that the incident of 2008 is not repeated, he said.
The ECP counsel then stressed that Article 218-3 of the Constitution underscored the importance of transparent and fair elections.
On the CJP’s remarks that minor disputes are only to be expected, the ECP’s advocate said that the election organising authority feared violence may break out.
The CJP then turned his attention to another topic.
“Overseas Pakistanis demand the right to vote, while the Supreme Court's order is also available, yet the commission has done nothing about it,” he commented.
The CJP then inquired of the government whether the six-month period could be reduced?
At this, the argument of the ECP lawyer was concluded.
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.