ISLAMABAD: The Supreme Court on Wednesday asked the government to give assurances that the political temperature would be toned down while it adjourned the hearing of the election delay case till tomorrow (Thursday).
During today’s hearing five-member bench 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 affairs as a cause of political instability in the country”.
PTI has filed a petition against the ECP’s March 22 order postponing the elections in Punjab and Khyber Pakhtunkhwa, citing multiple reasons.
A larger bench of the SC headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, comprises Justice Ijaz Ul Ahsan, Justice Munib Akhtar, Justice Amin-Ud-Din Khan, and Justice Jamal Khan Mandokhail, is hearing the plea.
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 examine administrative power rules.
“In the second part of the verdict, four of us judges rejected the suo motu notice and pleas,” he said, adding that the four judges’ judgment was the court’s order.
He, however, stated that CJP Bandial did not issue this order of the court.
“How did the president give a date when there wasn’t a verdict, how did the election commission issue the schedule,” he asked.
He further stated that they could check the file of the court’s records, it doesn’t have the order of the court.
“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 judgment.
“It is necessary to [fulfill] 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 luck depends on this matter as the nation is stuck in a dilemma.
The matter of jurisdiction should be decided; first, Naek added.
At this, CJP Bandial directed the lawyer to submit his request in written and warned against spoiling the court’s environment.
“[We] will decide this matter when there is a petition,” the chief justice said, announcing that the court will hear ECP’s arguments first.
ECP’s lawyer Irfan Qadir appeared before the court upon CJP Bandial’s inquiry.
Starting his arguments, Qadir said it was his first appearance in the case.
CJP Bandial asked him if ECP had to submit the documents today.
At this, the lawyer said there was a procedure for that and “why is the court in a rush”.
CJP Bandial then directed him to give his arguments if he hadn’t brought the documents.
“You are superseding other lawyer,” he said.
At this, Qadir said that he was leaving the rostrum and the court could do whatever it wanted and select the lawyer as per its will.
CJP Bandial remarked that Hamid Ali Shah and Sajeel Swati had appeared on behalf of ECP in the previous hearing.
At this, Qadir left the courtroom, with Swati proceeding to the rostrum for arguments.
Moving on, Justice Mandokhail asked how the ECP issued an election schedule when it did not receive the court’s order.
“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 judgment.
Meanwhile, Justice Akhtar inquired if the brief verdict stated it was a 4-3 split verdict. He said that the March 1 judgment does not state anywhere that it is a 4-3 split verdict.
“Having a difference of opinion is the right of the judge but 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 disappeared into thin air,” he asked.
At this, CJP Bandial interjected that the matter 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 is
The lawyer informed the court that he had not taken the electoral body’s directive over the 4-3 split verdict.
The lawyer maintained that the electoral body started implementing 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.
He then informed the court about the army’s refusal to provide security and sensitive agencies reports on terrorist threats in KP.
As CJP Bandial asked if the election commission informed the president about these issues, Swati said 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, 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 informed the court that the Finance Ministry told the ECP that they couldn’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.
SC hearing elections case
Moving on, Justice Bandial remarked that the elections had to be conducted in 2023 under any circumstances, asking if the funds hadn’t been reserved for it in the annual budget.
At this, AGP maintained that the poll budget had to be reserved for the next fiscal year. He added that they did not take into account the early dissolution of assemblies.
Upon CJP’s inquiry, the AGP said that Rs47 billion would be spent if the elections were held altogether in the entire country, and Rs20 billion would be spent extra if the provincial elections were held early.
Continuing the arguments, ECP’s lawyer said that political figures were facing security threats, not for election day but during the election campaign, as the militants had been leading terror attacks from Afghanistan since the US withdrawal.
“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 commissions’ advice, he added.
Moreover, the ECP’s lawyer informed the court that the operations in Punjab’s kaccha area would take six months to complete.
Meanwhile, CJP Bandial remarked that the issue of terrorism was genuine. He, however, said that the elections had been conducted in the country despite this issue being present for the last 20 years.
“Polls had been conducted thrice in the 90s decade when sectarianism and terrorism were on its peak,” he added.
He observed that the ECP suggested the dates without stating these facts to the president.
Besides, Justice Akhtar inquired if the ECP would organize the polls if the institutions provide assistance to it.
“Apparently, the entire case of the ECP 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 were held in some areas, then 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 and how it can run away from it. He added that the ECP should have come to the court if it had any issues.
“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 could change the election program 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 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.
