ISLAMABAD: The Supreme Court Monday reserved the verdict on Pakistan Tehreek-e-Insaf’s (PTI) plea against the Election Commission of Pakistan’s (ECP) decision to delay the elections in Punjab and Khyber Pakhtunkhwa.
The court said that it will issue the verdict tomorrow, but the time would be announced later.
While directing the Attorney General of Pakistan Mansoor Usman Awan, Chief Justice Umar Ata Bandial — who was heading the three-judge bench comprising Justice Munib Akhtar and Justice Ijaz ul Ahsan — said that the government and PTI should find a solution through political dialogue.
“Have a political dialogue for the Pakistani nation’s sake. Reach a political conclusion,” the chief justice said.
The verdict was issued despite the government seeking the formation of a new bench to hear the case.
CJP Bandial said that Constitutional machinery exists if political dialogue doesn’t take place.
“Allegations are being made because everyone wants to fulfil political interests. They even want to choose their own judges to have their cases heard,” the chief justice remarked adding that this has never happened before.
CJP Bandial urged for patience and tolerance while stating that he respects the parliament and government.
“The idea of elections taking place at the same time is excellent. But two assemblies have been dissolved in this case. A guarantee would be needed from the federal government,” he said.
The top judge of the country further spoke about the lack of political dialogue in the country and acknowledged the pressure on the federal government. “If the federal government assures conducting elections then something can be considered.”
He also mentioned that Article 218 is the ECP’s responsibility, but it doesn’t allow violation of the Constitution.
“Mr Irfan Qadir said that the president’s powers are subject to consultation. Unfortunately, political agendas come to the fore in political parties,” he said.
He asked if the elections date could be issued without consultation with the president and that the AGP did not raise such an important question while getting embroiled in the bench related matters.
“We cannot listen to the lawyers of the ruling alliance due to the boycott of court,” he said.
Ahead of today’s hearing Attorney General for Pakistan Mansoor Usman Awan filed a miscellaneous plea in the apex court for the reconstitution of the bench.
In the plea, filed on behalf of the federation, the Supreme Court was requested to dismiss the election delay case because of the majority (4-3) order/judgment of March 1.
The petition stated that the proceedings in the instant petition might kindly be postponed in light of the order passed by Justice Qazi Faez Isa, postponing all the proceedings in suo motu matters.
“This Hon’ble Bench, in view of submissions made in paragraphs 11 and 12, may graciously recuse from hearing the instant petition and a bench comprising of all remaining Hon’ble Judges of this court, who did not hear SMC No. 1/2023, CPs No 1 and 2 of 2023, may kindly be constituted to decide the questions raised herein,” it requested.
Today’s hearing
At the start of the hearing, Pakistan People’s Party (PPP) counsel Farooq H. Naik came to the rostrum and requested to speak.
However, Chief Justice of Pakistan (CJP) Umar Atta Bandial asked if he was becoming a party to the case as he had announced a boycott of the proceedings.
On this, Naik told the bench that he has not yet boycotted the proceedings.
“Consult and tell us. Tell us in writing that you have not boycotted the hearing,” the chief justice said.
The PPP counsel then clarified to the court that their party had objected to the constitution of the bench and did not boycott the proceedings.
The Chief Justice remarked that there have been reports in the newspapers that the People’s Party has also boycotted.
“You have boycotted and come to give your arguments. At the [PDM] meeting, no confidence was expressed in the bench,” Justice Muneeb Akhtar interjected.
On this, Pakistan Muslim League-Nawaz (PMLN) lawyer Akram Sheikh told the court that he has yet to withdraw the power of attorney and he has objections to the bench hearing the case. He also clarified that he has not yet boycotted the proceedings.
“There was a conference of political parties and in the last 48 hours it is being reported in the national press that a boycott has been announced. Justice Akhtar inquired that if you do not trust us, how will you give arguments.
The Chief Justice then turned to AGP Mansoor Usman Awan and asked what instructions he had received, adding that the government cannot boycott the proceedings.
The AGP replied that governments work according to the constitution and the ECP has the power to postpone the date of elections.
However, Justice Ahsan remarked that when the Supreme Court has already given its verdict, how can the ECP change the date.
Justice Ahsan said that the decision of the Supreme Court applies to everyone including the executive.
AGP Awan then went on to discuss the Supreme Court’s March 1 order asking the President to give dates for elections in Punjab and Governor Khyber Pakhtunkhwa. He further said that the KP Governor has not yet fixed the date for the provincial assembly elections.
The law does not allow anyone to delay the elections. Only the court can postpone the election date,” replied Chief Justice Bandial. He added that in 1988 too, the court postponed the elections.
Chief Justice Bandial further said that the order being referred to has been implemented. He further said that the hearing of the Supreme Court is in the public interest and the judges differ on it.
On the other hand, Justice Ahsan said that the real problem is the ECP’s order, the court orders are being obeyed.
AGP Awan then went back to the suo motu case and said that in the “first round” a nine-member bench heard the case.
AGP Awan said, “The details of the dissenting notes of the two judges have come to light while both the judges had dismissed the petitions on the first day.”
Chief Justice Bandial then told the AGP that he had not yet come across any case in which the Chief Justice was prevented from changing the bench.
AGP said that the Peshawar case was one but the Chief Justice said that it was not a court order but a minority order.
AGP Awan then reiterated that the court order for the March 1 verdict is yet to be issued.
“Are you saying that I have not constituted a new bench and the original bench is still standing?” Chief Justice Bandial added, “Disagreement is part and parcel of the proceedings of the Supreme Court; however, consultation also took place.” goes.”
AGP Awan said that in our opinion the majority of judges have rejected the automatic notice.
The Chief Justice replied that the AGP was ignoring the decision of the five-judge bench which had empowered the Chief Justice to constitute the bench.
The AGP said that the reservations regarding Justice Ahsan and Justice Mazhar Naqvi are before the court, and reiterated that the present suo motu notice has been rejected by the majority of the court.
However, Chief Justice Bandial said that all the judges agreed that the Chief Justice has the power to constitute a bench.
“The power exercised by the Chief Justice is administrative and not judicial. The case was heard on merits,” said Justice Ahsan.
The AGP replied that Justice Athar Minullah had said that if the Chief Justice wanted, he could be included in the bench.
Justice Akhtar said that if the judge has said that it is the prerogative of the Chief Justice to constitute a bench, then the argument is over. He added that if the logic behind the 4-3 decision is accepted, the matter will go to a nine-member bench.
Chief Justice Bandial further said, “The detailed dissenting note does not include the point of reconstitution of the bench.
The AGP then said that the reconstitution of the bench was an administrative move as per the note, arguing that Justice Ahsan and Justice Naqvi recused themselves from the case as per the note.
The Chief Justice further said that after the opinion of two judges, a new bench was constituted and the hearing resumed.
On this, AGP Awan said that according to the opinion of the four judges, the automatic notice was dismissed.
However, Chief Justice Bandial said the government’s counsel failed to convince him. He further said that the order of Justice Qazi Faiz Isa is not clear.
AGP Awan said that the order of any bench of the Supreme Court is applicable to all.
However, Justice Akhtar remarked that if we are talking about the present case, then nothing like this is applicable in this case.
“What you are saying is based on assumptions. Chief Justice Bandial said that very important matters are automatically taken notice of.”
AGP seeks full court
Moving forward, AGP Awan said that he has brought a request for setting up a full court. “It was reported that the Supreme Court has rejected the full court’s plea but it is missing from the order.”
The Chief Justice then noted that the AGP’s arguments were based on assumptions, adding that the court is very cautious in the matter of suo moto notices.
“It is not clear in the suo moto notice whether the other party will appear or not. Apart from the Speaker’s request, two judges requested to take suo motu notice,” said Chief Justice Bandial. He added that the AGP was trying to gloss over things for its own benefit.
The AGP then requested the bench to adjourn the hearing of the case.
However, Justice Akhtar remarked that on one hand AGP is asking for a full court and on the other hand asking for adjournment of the case.
Justice Akhtar said that you decide what you want from the court.
The AGP then reiterated that the request for constitution of the full court was not accepted in the first hearing and on Friday also but the order did not mention that it was rejected.
The Chief Justice then clarified that the Supreme Court had only said that it would take up the matter with the full court later and did not reject the petition.
On the circular issued regarding the decision of Justice Qazi Faiz Isa, the Chief Justice clarified that no decision was withdrawn on the basis of the circular.
The AGP then requested the court to adjourn the hearing till the finalization of Rules 184/3.
But Justice Ahsan said how can he adjourn the hearing when rules have been made for constitutional petitions.
While Chief Justice Bandial said that the AGP should have demanded the formation of a larger bench instead of a full court. He also asked the AGP to inform the bench whether any member of the nine-member bench had refused to sit in the case.
Chief Justice Bandial said that the judges said that it is up to the Chief Justice to include us in the bench or not. He then added that the March 1 decision was a 3-2 decision.
“Some of the judges, without hearing the hearing, decided that the petitions could not be heard. Chief Justice Bandial said that how can the decision of the judges who had separated be implemented. He further said that the scope of judgment given without hearing the case is very limited.
The AGP then requested the Chief Justice to review the four-judge judgement, but the Chief Justice said that the decision can be taken only if the decision is enforceable.
AGP request in chamber briefing
Moving on, Chief Justice Bandial asked the AGP that the court had summoned the finance and defense secretaries and were they present in the court?
The AGP replied in the affirmative and said that he had the report of the finance secretaries.
The Chief Justice said that the matter of security is very sensitive, first listen to the two persons and let them go back.
On this occasion, AGP Awan requested the court to hear the case in-chamber.
But Chief Justice Bandial said that in such a case, he can provide the sealed copy to the court.
The Chief Justice said that we are not talking about the army, the armed forces also include the Air Force and the Navy.
If army personnel are busy elsewhere, personnel from the air force, navy and other security agencies can be deployed.
The Chief Justice questioned how many security personnel were required for the election and said that the rest of the sensitive details would be heard in the chamber.
Defence secretary to give in-chamber briefing on Punjab security
On this occasion, Defense Secretary Lieutenant General (R) Mahmood Rehman appeared in the court.
Chief Justice Bandial inquired about the seriousness of the security situation in Punjab.
On this, the defense secretary said that he will brief the court on the security of Punjab in the chamber because if the matters are discussed in the court, the enemy may leak information.
“There is some sensitive information that will be shared in the chamber,” Rahman said.
Chief Justice Bandial then asked the secretary if he had brought some sealed files, to which the latter said that he had not yet but would produce them in the court.
On this, the Chief Justice asked Rehman to give the files to the bench.
“We will go through [the files] and return them. The defense secretary need not come to the next hearing,” the chief justice remarked, adding that a question came to his mind. So they will ask in court.
Justice Ijaz-ul-Ahsan remarked that we do not want to put our forces in any trouble, the court will not allow any information to be leaked.
The Defense Secretary reiterated that he would give a detailed briefing to the court in chambers.
PTI lawyer contends ‘not much security needed’ for polls
Meanwhile, PTI’s lawyer Ali Zafar claimed that there is no need for more security as the situation in Punjab is not serious.
On this, the Chief Justice suggested that retired military personnel and paramilitary forces can also do election duty.
Chief Justice Bandial remarked that the conditions of the country have been bad for a long time.
Meanwhile, the defense secretary sought time till tomorrow to submit the reply.
Chief Justice Bandial then directed the official to report after a few hours or by tomorrow morning, while ordering the Finance Secretary to inform about the funds.
Court seeks report from defence ministry
Briefing the court about the affairs of the Ministry of Defence, the Defense Secretary said that time is needed to call up the reserve force. He added that the reserve force is also trained.
Chief Justice Bandial said that a large number of soldiers are also deployed on the borders and added that polling is not being held tomorrow as its complete schedule is yet to come.
The Chief Justice asked the Defense Secretary to identify the areas where the security situation is sensitive. ECP has declared 45 polling stations as sensitive.
PTI’s lawyer Ali Zafar inquired that when by-elections were held in the past, why can’t general elections be held?
Chief Justice Bandial said that by-elections should not be compared with general elections.
The court ordered the defense secretary to submit the report by tonight or tomorrow (Tuesday) morning.
During his turn on the rostrum, PTI Secretary General Asad Umar said that if Rs 20 billion is given for the elections, there will be little difference in the budget deficit.
This year the development budget is 700 billion rupees. 229 billion rupees will be spent in the first eight months. Special funds will be released to members of the National Assembly.
The politician added that the excuse of not providing Rs 20 billion to fulfill the constitutional obligation would be a ‘joke’.
‘Lessen non-development budget’
Commenting on the expenditure of the present government, Chief Justice Bandial said that 229 billion rupees were spent in 8 months. “It means cuts have been made but the focus is elsewhere.”
Addressing the Additional Secretary Finance, the Chief Justice asked the government not to reduce the development budget but to reduce the non-development budget.
The Additional Finance Secretary said that the non-development budget includes salaries of employees.
The Chief Justice said that the government is taking good steps for economic improvement.
Additional Secretary Finance said that new taxes were imposed to collect Rs 170 billion.
In response to which Justice Akhtar remarked that the Finance Minister had said in February that more than 500 billion rupees of tax had been collected. “The budget deficit is estimated to still exist.”
Justice Akhtar further remarked that the government has a deficit of 157 billion rupees on petroleum products. He asked what would happen if there were 177 billion rupees?
In response to their question, the Additional Finance Secretary said that the deficit has been agreed with the International Monetary Fund.
The Chief Justice said that if there is any legal obstacle in reducing the expenses, the court will help. I will also ask the Election Commission to reduce the expenses.
He then asked if a financial expert would brief the court on the situation.
The court adjourned till 2:30 pm.
Post-break hearing
When the hearing resumed after a break, ECP’s lawyer Irfan Qadir requested the court to hear his arguments first.
He said that the court should take notice of the discussion on social media.
The Chief Justice, replying to them, said that the court will not take suo motu and the commission will have to submit the application.
“The government is hesitant. It has said against talking to anyone and asked the court to decide.
Justice Ahsan said that if financial reasons are used as an excuse, the election will never take place.
AGP Awan said that the government will allocate funds for elections in the next budget.
ECP counsel Qadir said during his arguments that there was a lot of discussion on social media regarding the three-member bench. “Everybody’s talking about bench bias.”
He further said that Pakistan Democratic Movement (PDM) demanded full court but its demand was not fulfilled.
Justice should not only be done but should be seen. I am not seeing justice being done and that does not mean that [I am] offending the dignity of the bench,” he said, adding that the bench members had earlier issued a controversial judgment.
He said that it is important to see whether the ratio of the decision was 3/4 or 3/2. Nine judges heard the election case, while four dismissed it and three ordered the Election Commission. This bench should end the conflict between the judges.
The ECP counsel added that the disagreement between the judges is not only internal but also on the basis of judgment. “Public trust requires judges from all sides to be included in the bench. The fundamental rights of one political party cannot be the fundamental rights of the entire country.
He said that general and provincial elections have been held on the same day for the past several years. “Elections should be held simultaneously across the country. It is better for the financial condition of the country.
The court should leave the matter of conducting the election to the ECP, Qadir said that the President’s order to announce the date of elections in Punjab and the Governor’s order to announce it in KPK is a violation of the Election Act.
The Chief Justice said that in a meeting with Justice Qazi Faiz Isa, he accepted that the judges will not be able to be part of the full court due to their decision. “We will convene a full court session soon.”
Irfan Qadir said that the present bench would have been transparent if Justice Ahsan had not been included in it.
Chief Justice Bandial told Qadir that he was not accountable to him regarding his administrative powers.
Qadir said that you are not responsible to me but to the nation.
The Chief Justice said that I am answerable to court orders, not to administrative orders.
The ECP counsel said that the judgments have been published many times before the signatures of the judge.
The Chief Justice asked him to show any documentary evidence for this.
