ISLAMABAD: Chief Justice of Pakistan (CJP) Umar Atta Bandial said on Tuesday that the Election Commission of Pakistan (ECP) decided to postpone the elections in Punjab in haste.
The Chief Justice made these remarks after the Supreme Court resumed hearing on the Pakistan Tehreek-e-Insaf (PTI) petition challenging the Election Commission of Pakistan (ECP) decision regarding the Punjab and Khyber Pakhtunkhwa elections. .
During the hearing, Justice Jamal Mandokhail asked the ECP that if the decision to delay the vote was declared invalid, then what would happen to the date of the election?
The hearing was then adjourned till 11:30 am tomorrow (Wednesday).
A day after Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail’s strongly dissenting note on March 1 verdict on Punjab and Khyber Pakhtunkhwa elections, Chief Justice of Pakistan (CJP) Umar Atta Bandial remarked that it was his is an “opinion” and has nothing to do with the ongoing case.
Chief Justice Bandial is heading the five-member larger bench hearing the petition. Besides the Chief Justice, the bench includes Justice Ijaz-ul-Ahsan, Justice Muneeb Akhtar, Justice Aminuddin Khan and Justice Jamal Khan Mandokhail.
The Imran Khan-led party had challenged the decision of the Election Commission of Pakistan (ECP) to postpone the elections in Punjab till October 8.
The electoral body’s announcement came after financial and security officials expressed reluctance to support the electoral process.
Subsequently, Khyber Pakhtunkhwa Governor Haji Ghulam Ali also urged the electoral body to hold the general elections on the same date (October 8) in view of increasing security threats from terrorist groups operating from the border areas of Pakistan and Afghanistan. There are elections in Punjab.
Today’s hearing
At the beginning of the hearing, Chief Justice Bandial welcomed the new Attorney General for Pakistan Mansoor Usman Awan. Referring to “good friend” Farooq H. Naik, the chief justice remarked that the court would require the assistance of senior counsel on the matter.
No more delay.
The Chief Justice remarked that the court did not want to drag the matter.
He said that according to yesterday’s order, the jurisdiction of the ECP will be seen by the court while the request of the ruling coalition parties to become party to the case will be considered later.
Chief Justice Bandial said that “rule of law and democracy are two sides of the same coin, there should be mutual tolerance, restraint and law and order.”
Meanwhile, Naik intervened and told the bench that he is also a stakeholder in the case.
On this, the Chief Justice assured the senior counsel that no one denied the importance of Naik but he felt that he should not get into a legal dispute.
Direction of circumstances
He said that the parties have to decide the direction of the situation while the court has to present the facts.
“My position on the March 1 decision is that the law empowers the President to give the date of elections. The Chief Justice said if you want clarification on the March 1 decision, file a separate petition. He added that the case The “simple question” was whether the ECP could change the election date or not.
The Chief Justice said that if the ECP has the authority, the matter will be resolved.
On the other hand, the Attorney General took the position that the court decision was 4-3, so there was no order.
He further said that if it was not for this court order, the President could not have given the date of the election.
AGP said, “March 1 should be decided first.
‘Polls necessary for democracy’
On this, Chief Justice Bandial remarked that now the case is not about giving date of election but about delay. He said that elections are necessary for democracy.
Two honorable judges gave the verdict. This is the opinion of these two judges but is not relevant to the present case. The Chief Justice remarked that the sensitive issue should not be neglected.
The AGP replied that the present petition seeks implementation of the court orders in the March 1 judgment.
On this, Chief Justice Bandial remarked that the members of the bench are there to examine the questions raised in the petition. He added that the Supreme Court’s jurisdiction was not limited to the petition.
Formation of full court
On this point, the AGP intervened and appealed to constitute a full court on the matter.
“It is requested that this is an important matter and if the bench deems it fit, a full court should be constituted,” the AGP said.
Justice Mandokhail, however, remarked that the number of judges upholding the March 1 verdict was an internal matter of the Supreme Court.
He questioned whether the constitution requires elections to be held within 90 days or not and whether the ECP can postpone the date of elections.
After hearing Justice Mandokhail, the Chief Justice thanked the judge for clearing the matter.
On the other hand, PTI’s lawyer Ali Zafar said that every institution has to work within its constitutional limits.
On this, Chief Justice Bandial remarked that he expected the PTI’s senior leadership to behave the same way as expressed by the lawyer. He also asked the lawyer whether he had spoken to the senior leadership of the party.
“PTI will have to be the first [to speak] as they have approached the court,” the chief justice said. He advised the parties in the case to avoid differences, saying that there is violence, intolerance and economic crisis in the country.
Crises to intensify
On this, Barrister Zafar said that if the elections are delayed, these crises will intensify.
After that, Chief Justice Bandial remarked that he would order the government only if PTI takes the initiative.
Justice Khan said that can the period of 90 days before the election be reduced?
On which Justice Ahsan remarked that the Election Commission is bound to schedule the elections in 90 days. Barrister Zafar said that the election watchdog cannot withdraw the order once it has been given.
Justice Mandokhail remarked that unfortunately no one doubts that elections cannot be held in 90 days. He also wondered if there is a democratic way to solve this problem.
Polls under any circumstances
Justice Mandokhail expressed regret and said that no one cares about the constitution in Pakistan, but elections should be held in any case.
The justice added that the question is who has the power to extend the 90-day period and if the assembly is dissolved at the behest of a single person.
PTI’s lawyer gave arguments and said that Prime Minister and Chief Minister are elected representatives.
On which Justice Mandokhail remarked that if the Prime Minister’s party moves a no-confidence motion against him, the assembly may be dissolved.
However, Barrister Ali Zafar said that the assembly cannot be dissolved in case of no-confidence motion.
Justice Mandokhail remarked that Parliament should review the power of a single person to dissolve the assembly.
Dates and delays
On this, Barrister Zafar said that the powers of the Prime Minister and the Chief Minister can be discussed in the Parliament.
“The Constitution does not permit any delay in the fundamental right of elections,” he maintained, adding that efforts had been made to postpone elections in the recent past.
Zafar added that the ECP maintained that he could not give the date, while the governor said that it was his authority to give the date of the elections.
On this occasion, Justice Ahsan remarked that the decision of the Supreme Court has been implemented when the election schedule was released. However, the question before the bench was whether the ECP has the authority to change the date given by the President.
“Can the Election Commission delay [the elections] for more than 90 days,” he asked.
Meanwhile, Chief Justice Bandial remarked that Section 58 of the Election Act does not allow postponement of elections.
On this, Barrister Zafar said that the ECP gave its order on the basis of two provisions of the Constitution.
Justice Mandokhail then inquired that the election monitoring body excused itself from fulfilling its constitutional responsibility citing these reasons.
He questioned what would have happened if the ECP had not given the date of October 8.
On which Justice Ahsan remarked that the Election Body could have approached the President to change the date of the election.
“All administrative bodies are bound to cooperate with the ECP. The Election Commission can approach only if there are compelling reasons,” he added.
Authority to defer polls
Barrister Zafar remarked: “Article 220 of the Constitution obliges all governments and institutions to cooperate with the ECP, but the electoral body took the decision only after taking input from the institutions”.
He urged the court to question the election watcher as to why he did not exercise his constitutional powers. He said that if the administrative bodies do not cooperate, Article 5 of the Constitution will be applied.
The lawyer said that according to the Election Commission, Article 254 gives the authority to postpone elections.
On which Justice Mandokhail remarked that the date given by the Election Authority is 90 days later.
Was the date after the 90-day period correct, he asked.
Barrister Zafar said that if the court orders now, elections cannot be held in 90 days.
On which Justice Mandokhail remarked that the President has also given a date of 90 days later.
He added that Article 254 can be invoked after the work is done but not before.
After 90 days
Justice Ahsan said that ‘practically, if the election is not possible in 90 days, the court can issue an order’.
Justice Ahsan said that if the election cannot be held in 90 days, the court can issue an order.
However, Justice Akhtar remarked that if it is not possible to hold elections, the Election Commission should have approached the court.
He explained that if the other assembly is dissolved before the date of election of one assembly, then the court can be approached for the election on the same day.
He said that the Election Commission cannot automatically issue an order to postpone the election, if the Election Commission can postpone the election for 6 months, it can also do it for six years.
On which Justice Mandokhail remarked that ‘the Constitution is silent as to who can advance the elections’.
Shouldn’t Parliament amend the Constitution? he asked. The justice added that it would be best if Parliament amended it.
Justice Akhtar remarked that the question is, what will happen to these elections unless there is an amendment?
On this, Barrister Zafar said that if you consider the basis of postponing the elections, then the elections can never be held.
Justice Akhtar remarked that if it is a matter of funds, how will the caretaker government provide the funds?
He asked if the problems that are happening today will not happen on October 8.
On this, Barrister Zafar argued that the ECP had said in its order dated March 22 that the funds had not been provided.
He said that the Election Commission never requested funds.
Justice Akhtar remarked that the Prime Minister’s statement was read in the newspaper. He further said that the federal government says that 500 billion rupees tax revenue has been collected till March.
He said that it is surprising that the government could not save 20 billion rupees out of these 500 billion rupees for elections.
Barrister Zafar, quoting the Finance Secretary, said that it would be difficult to provide funds as per the ECP order and added that the Finance Ministry had not flatly refused to provide the funds but asked them to arrange the money. It will be difficult.
Justice Akhtar remarked that the Finance Secretary had said that if the funds for the elections were not available now, how would they be available in the future, which meant that the elections would never take place.
“How can a government secretary make such a grand statement?” Justice Akhtar questioned.
He added that the tax collected goes to the federal consolidated funds.
During the hearing, Chief Justice Bandial suggested a cut in judges’ salaries for the election. He further said that the entire budget is not required for elections.
The Chief Justice said that our salaries can be cut on collecting 20 billion rupees, the government can save 20 billion rupees by reducing expenses.
Senator Naik said that the expenditure of federal consolidated funds was spent with the approval of Parliament.
Justice Akhtar said that if the assembly has been dissolved, how can the funds be released?
In the present case, the National Assembly is present. The new assembly will approve the expenditure,” said Naik. He further said that only the ECP can explain the finance secretary’s statement.
Justice Mandokhail inquired as to how the Finance Secretary can release such funds which are not sanctioned.
During the discussion, PTI’s counsel took the stand that the release of funds was a technical issue.
On this occasion, Chief Justice Bandial remarked that the country is going through an economic crisis and this is a fact that cannot be ignored.
Sacrifice is necessary to deal with crisis. The Chief Justice said that the expenses of the election can be met by cutting the salaries by 5%. He added that elections are being held everywhere in Turkey except the earthquake affected areas.
At this point, Zafar intervened and remarked that “The Election Act allows the ECP to cancel polling wherever there is a problem. It cannot postpone the entire election.”
Chief Justice Bandial remarked that elections can be postponed only by declaring emergency. He also asked whether the ECP decision recommended imposition of emergency.
“Absolutely not,” replied Zafar.
After that, the court took a break of 30 minutes.
After the break
Later, Justice Muneeb Akhtar said that the election can be held at any time, the commission should be ready.
He said that running the government is not the job of the Election Commission.
Justice Bandial said that the Election Commission has no authority to change the date of elections according to the constitution and law. “It is quite clear that it is not the power of the Election Commission to give the date of elections.”
Shouldn’t the Election Commission have approached the Supreme Court for the delay in the elections? Justice Akhtar inquired.
In response, the Attorney General said that the matter ultimately comes before the court when there is a question of exercising constitutional authority. He said that the Election Commission’s lawyers can give a better answer to this question.
Ruling alliance decides to become party in case
Hours before the hearing resumed on Tuesday, the ruling coalition decided to join the case.
The Pakistan Muslim League-Nawaz (PMLN), Pakistan Peoples Party and Jamiat Ulema-e-Islam-Fazl (JUI-F) have filed applications in the Supreme Court to become parties, and present their stand when the hearing resumes. will do
