Punjab, KP polls: ECP says ready to hold elections if provided funds, security
Amid the efforts to curb the “unbridled powers” of the top judge by the Shehbaz-led government, the Supreme Court resumed the hearing on PTI’s plea concerning the Election Commission of Pakistan’s order to delay polls in Punjab and Khyber Pakhtunkhwa (KP), citing the law and order situation.
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The Supreme Court’s (SC) five-member bench, headed by CJP Bandial and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Aminuddin Khan, and Justice Jamal Khan Mandokhail heard the petition.
Justice Ahsan asked the ECP’s lawyer whether the elections could be held on April 30 if they were provided funds and security.
The counsel replied that they can hold elections in Punjab if provision of funds and security are ensured.
Justice Ahsan said the commission should have approached the court if the institutions were not cooperating.
Justice Mandokhail inquired whether the polls could be delayed for a decade if the ECP is not satisfied with the situation in such situation.
The commission’s lawyer responded that they would take a ‘realistic decision’.
CJP remarked that they would find a way if the ECP was unable to.
He noted that the even in 1988, elections were delayed on the order of the court and went on to add that in 2008, the situation was such that no one objected to the postponement of the elections.
At the offset of the hearing, Justice Jamal Khan Mandokhail said that he wanted to clarify a few things circulating in the media.
He maintained that he abided by his dissenting note and short order and said that the verdict on suo moto on the election was dismissed by 4-3. Hence, the judge said that the suo moto notice over the delay in the election was rejected.
He remarked that only the matters pertaining to rules of the top court was referred to as ‘internal matter’, adding that four judges rejected pleas of PTI.
He said that the order of the polls was not given as per the decision of the majority of judges.
Justice Mandokhail said that the CJP has not issued the order of the court in the case to this date.
He asked how come the ECP issued the election schedule when there was no order from the court.
The court barred Irfan Qadir from representing the ECP due to some legalities but allowed Sajeel Swati to represent the electoral body.
The counsel said that the commission implemented the top court’s March 1 decision.
He said that under Article 224, the elections must be held within 90 days however the atmosphere for it must be conducive too.
Swati said that the order of the case was given by 3-2, adding that they implemented the decision as per paragraph 14 and introductory para.
Justice Mandokhail asked the counsel if he had read the short order.
The lawyer replied that there was a possibility that they misunderstood it.
Justice Munib Akhtar said that the dissenting notes do not mention that the verdict was passed by 4-3.
He said that the difference of opinion is the right of a jurist but the minority cannot claim itself to be a majority under any law.
Earlier on Tuesday, the CJP remarked that democracy cannot function without the rule of law, adding that the rise in political temperature will only increase problems.
CJP Bandial welcomed the new Attorney General of Pakistan (AGP) Usman Awan in the court and said that he expected to get the best assistance from him.
The top judge categorically said that they did not want to prolong the proceedings.
He stated that the simple question was whether the election commission can advance the election date or not.
CJP said that the matter would be over if it is the discretion of the electoral watchdog.
He added that the opinion of two judges in the top court’s verdict in suo moto elections case was irrelevant in the matter under adjudication.
AGP Awan raised questions over the maintainability of the PTI’s petition.
He argued that matters related to the elections should be referred to the Lahore High Court (LHC) citing dissenting notes of two apex court judges who opined that the suo moto in Punjab and KP elections case was dismissed by 4-3.
Referring to this judgement, AGP Awan maintained that the court verdict on the elections date did not exist if the verdict was passed by four-three majority.
He went on to say that the president could not give date for elections because there was no court order. AGP emphasized that the court take up the matter pertaining to verdict in suo moto case first.
However, CJP Bandial said that the question in the ongoing case was not about the judgement but about the ECP’s power.
The AGP contended that the PTI petition was based on the ECP’s violation of the SC orders.
To this, CJP Bandial remarked that elections were necessary for democracy and asked the AGP to avoid marring the matter on technical grounds.
Justice Manokhail - who was one of the two judges who penned down dissenting notes - pointed out the matter related to number of judges part of the suo moto bench was “Supreme Court’s internal matter”.
He then inquired whether holding elections within the stipulated time of 90 days was not a constitutional requirement. “Can the ECP delay the date for polls?”
At that, the CJP thanked Justice Mandokhail for “clearing the matter”.
After a brief break, the top court resumed hearing.
AGP argued that the decision of the ECP has been challenged only to the extent of Punjab in the new applications. However, KP governor’s case is different.
Justice Munib Akhtar asked, “Is collecting Rs20 billion a difficult task for the government?”
He said that it is the constitutional responsibility of the federation to protect the provinces from internal and external threats.
Justice Ahsan remarked that the government can spend Rs10 billion on laptop scheme but doesn’t have Rs20 billion for elections.
PTI’s Fawad Chaudhry noted that funds have been allocated to lawmakers for development projects.
Justice Munib Akhtar remarked that it was a violation of court order.
AGP said that he would inform regarding development funds in the next hearing.
On the topic that the armed forces have denied the request to provide security, Justice Munib Akhtar remarked if the country had become a banana republic
He said that the armed forces were subordinate to the government, asking how they can refuse to do a job.
“What is the problem with doing duty? A duty is a duty,” Justice Munib Akhtar said and added that the army’s job is to provide security during elections.
CJP Bandial said that the elections were delayed for only 40 days when Benazir Bhutto was assassinated.
ECP’s decision was written in haste, he remarked and stated that the commission has no authority to extend the date.
Elections may be postponed only where mobility is difficult, CJP said.
The hearing of the case was adjourned till 11:30am tomorrow (Wednesday).
Earlier during the last day hearing, the CJP raised concerns about the delay in the election schedule, and asked PTI’s counsel, Ali Zafar, to explain why it was wrong.
The top judge emphasized the need for all parties to remain peaceful if they wanted elections.
The top court sought assurance from the PTI and the government that they would remain peaceful for transparent elections.
PTI’s counsel argued that the country’s president had already set the election date for April 30, as per the court’s order.
However, the governor of KP had violated the court’s order and had not fixed a date.
Additionally, Zafar claimed that the Election Commission of Pakistan (ECP) had dismissed the election date proposed by the president, and that the date suggested by the ECP was beyond the 90-day limit mentioned in the Constitution.
Justice Munib Akhtar clarified that only the top court could determine whether its order had been violated.
The lawyer further argued that the caretaker setup was bound to hold elections within 90 days, and it could not be delayed for five months.
However, the CJP pointed out that the Constitution did not specify the duration of the caretaker setup.
Justice Ahsan questioned whether the ECP’s recent decision to fix the election date was a clear contradiction to their previous stance.
Justice Akhtar reminded the court that the SC’s verdict on elections in Punjab and KP had been signed by all five judges who were part of the bench. He emphasized that it was impossible for two decisions to exist simultaneously.
The CJP questioned the ECP’s decision to invoke Article 254, and whether it was applicable to the current matter.
Zafar argued that the article could only be invoked after the performance of a task, and not before it.
CJP remarked that the elections should be peaceful, free and fair, adding that elections are very important for running the governance system.
The additional attorney general (AAG) requested that the case be fixed after 2–3 days, which was rejected by the court.
The AAG pleaded with the court to adjourn the hearing till the appointment of the new attorney general. CJP Bandial said that the nominated attorney general met him today, and he would assume his charge by tomorrow (Tuesday).
The hearing on the case will resume on Tuesday.
Two judges question CJP’s jurisdiction
Two members of the five-judge Supreme Court’s bench, which heard a suo-motu case regarding the elections in the provinces of Punjab and Khyber Pakhtunkhwa, issued their 27-page dissenting note.
Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail, in their dissenting note, stated, “We agree with the orders dated February 23, 2023 passed by Justice Yahya Afridi and Justice Athar Minallah, and dismiss the present constitution petitions and drop the suo motu proceedings.”
They terminated the pleas and suo-motu cases related to the elections in Punjab and KP provinces. “However, the high courts shall take decisions in the pending identical cases within three days,” they added.
The two judges said, “We find it essential to underline that in order to strengthen our institution and to ensure public trust and confidence in our court, it is high time that we revisit the power of suo-motu.”
They said: So far as the matter of constituting a bench for hearing a case under Article 184(3) of the Constitution is concerned, there must also be uniformity and transparency.“ They said, “The collegial model ensures good governance as it rests on collaboration, shared decision-making, and a balance of power to ensure the best outcome.
Unfortunately the top court could not make structure of its own powers“.
The two judges stated that the reasons for not issuing the judgement in the current case should also be made part of the record. “The decision of the four judges is an order of the court. It is a decision with ratio of four and one members. Our decision is the continuity of the decisions of Justice Yahya Afridi and Justice Athar Minallah.”
They said the top court had already declared that a bench could not be changed after the issuance of the cause list. They said that the two judges had already given their decision on the suo-motu case, and it would not become ineffective if they did not join the bench. They noted that Justice Ijaz ul Ahsan and Justice Mazahar Ali Akbar Naqvi had willingly expressed their excuse from hearing the case instead of being removed from the bench. The judges could not be removed from the bench against their will, they added.
They wrote, “We are also fortified in our opinion by the precedent of the well-known Panama case. In the said case, the first order of the court was passed by a 3-2 majority, and in the subsequent hearings conducted in pursuance of the majority judgement, the two judges, who had made and announced their final decision, did not sit on the bench, but they were not considered to have been excluded from the bench and were made parties to the final judgement passed by the remaining three judges, and they also sat on the bench that heard the review petitions.
The two judges observed that the basic principle of the Federation was provincial autonomy in the country. The high courts were top constitutional institutions at provincial levels, and the top court should not interfere with them.
PTI moves apex court
PTI on Saturday approached SC against the ECP’s decision to delay the Punjab elections to October 8.
PTI senior leader Asad Umar took to his Twitter account to share that they have filed a petition against the electoral watchdog’s decision in the apex court.
In the petition, PTI termed the ECP’s decision as violation of Constitution and verdict of the top court.
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The petition added that the party has approached the SC as “the matter involved in the petition is of public importance with reference to enforcement of fundamental rights of the millions of people of Pakistan, particularly the people of Punjab and Khyber Pakhtunkhwa (K-P)”.
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In a startling announcement, ECP had postponed the general elections in Punjab that were scheduled to be held on April 30 in view of the recent spate of terrorist attacks in various parts of the country.
A notification was issued by Chief Election Commissioner Sikandar Sultan Raja in this regard. It said the commission had invoked Article 218(3) read with Section 58 and 8(c) of the Elections Act 2017.
According to the notification, the Punjab Assembly elections will now be held on Oct 8, and a new schedule will be issued for the polls.