By special Correspondent
ISLAMABAD: The Supreme Court on Tuesday termed null and void the Election Commission of Pakistan’s March 22 notification and restored the ECP’s election schedule with minor changes with setting new date for elections in Punjab as May 14.
Earlier in the day, the Ministry of Defence submitted its report to the Supreme Court through Attorney General of Pakistan Mansoor Awan detailing the availability of security personnel for election duties.
The apex court, in its verdict, declared the ECP’s decision to hold elections on October 8 as “unconstitutional”. It directed to conduct provincial polls between April 30 to May 15. “Constitution and law do not give [ECP] the authority to postpone the election date,” said the apex court, adding that the electoral process was at its fifth stage when the ECP announced its decision.
The court remarked that the ECP’s order wasted 13 days adding that the electoral body made an unconstitutional decision by shifting the date for the polls to October 8.
“The impugned order dated 22.03.2023 (“EC Order”) made by the Election Commission of Pakistan (“Commission”) is declared to be unconstitutional, without lawful authority or jurisdiction, void ab-initio, of no legal effect and is hereby quashed,” the ruling said. “Neither the Constitution nor the law empowers the Commission to extend the date of elections beyond the 90 days period as provided in Article 224(2) of the Constitution.”
The verdict further said the last date for submitting appeals against the returning officer’s decision is April 10 and the election tribunal will announce the decision on the appeals on April 17. “Elections in Punjab and KP should be transparent, impartial and as per the law,” read the verdict.
It further said that the federal government should provide Rs21 billion in funds by April 10 to the Election Commission and directed the body to present a report on the subject by April 11. The verdict also said that the SC will issue instructions to the authorities concerned in case the funds are not provided.
“Punjab government should give a security plan to the Election Commission,” said the court’s verdict. It further said that Punjab’s interim cabinet and chief secretary should report to the ECP regarding the electoral staff by April 10.
The apex court also directed the federal government to provide resources including Rangers, armed forces, FC personnel — and extend support in order to hold polls in the provinces.
According to the verdict, the federal government has been directed to share the security plan with the electoral body by April 17. It further urged the Commission to approach the court in case the caretaker government of Punjab and the federal government refrain from complying with the order.
The judgment also addressed the concerns raised regarding the March 1 decision which was based on 3:2, stating that the decision announced by Justice Qazi Faez Isa and Justice Amin-ud-Din Khan has “no legal standing.”
A three-member bench had reserved the judgment while refusing to entertain request for a full court hearing into the matter on Monday. The Election Commission of Pakistan had earlier announced the date for elections in Punjab on April 30 but later postponed it to October 8, prompting the opposition party Pakistan Tehreek-e-Insaf (PTI) to register a plea in the apex court.
The court — which initiated proceedings on the PTI’s petition on March 27 — reserved the verdict on Monday (March 3), saying it would announce it the next day, April 4. The top court accepted the PTI’s petition and started hearing it on the same day, March 27, held six hearings for a period spanning over eight days, in which the parties involved advanced their arguments.
Initially, Chief Justice of Pakistan Umar Ata Bandial formed a five-member bench, which comprised him, Justice Amin-ud-Din Khan, Justice Munib Akhtar, Justice Jamal Khan Mandokhail and Justice Ijazul Ahsan. But on March 30, Justice Amin-ud-Din Khan recused himself from the case hearing citing a judgement from a three-member separate SC bench that ordered to halt proceedings under Article 184(3) of the constitution.
Then, the five-member bench was cut down to four — Chief Justice Bandial, Justice Munib Akhtar, Justice Jamal Khan Mandokhail, and Justice Ejazul Ahsan. A day later, on March 31, Justice Jamal Khan Mandokhail also recused himself noting since he was not consulted before the constitution of the bench, he would like to withdraw himself, leaving three judges — CJ Bandial, Justice Akhtar, and Justice Ahsan. The three-member bench heard the arguments from advocate generals of KP, and Punjab, the AGP, ECP’s lawyer, and secretaries of defence and finance and will announce the verdict.
No trust in SC three-member bench
As the hearing proceeded, Pakistan Democratic Movement (PDM) and Pakistan Peoples’ Party (PPP) sought the formation of a full court to hear the matter. But the apex court rejected their request. The coalition parties had, a day earlier, expressed no-confidence in the three-member bench led by the CJP hearing the case and maintained that it would not accept the decision. However, they backtracked from the position the next day when their lawyers appeared before the three-member bench and started arguments. Law Minister Azam Nazeer Tarar had also said the government will not accept if the apex court’s decision on an important issue is announced in haste.
Before concluding the proceedings, the three-member bench took the wind out of the ruling coalition’s sails by asking them whether they have trust in the bench or not. “Have you withdrawn your boycott… if you want to give arguments, then put it in writing whether you have confidence in the bench,” Chief Justice Umar Ata Bandial said as Senator Farooq H Naek, who was representing the PPP, appeared before the bench at the outset of the Tuesday’s proceedings.
The remarks by the top judge were in reference to the meeting of government allies in Lahore on Saturday, wherein the PDM and its partners, dropped hints that they would not accept the decision while expressing “complete no-confidence” in the three-member bench.
Farooq Naek, however, stated that the coalition partners had expressed reservations on the bench in view of the jurisdictional point of view, adding a larger bench be constituted to hear the case.
Member bench, Justice Munib Akhtar, while referring to the statement issued after the Lahore huddle, wondered if the ruling coalition doesn’t trust the bench then how could they make a submission before it.
During the hearing of the case, the parliament also passed the Supreme Court (Practice and Procedure) Bill, 2023, to cut the powers of the chief justice. However, President Dr. Arif Alvi is yet to sign it.
Towards the end of the proceedings, the Chief Justice regretted that it was rather a sense of loss that the bench could not hear lawyers of the ruling partners, saying “political agendas” always come in the way during cases of political nature, that he said, deprived the court of able assistance from the other side.
Outside the Supreme Court building, lawyers belonging to PTI and the ruling parties showed up in large numbers, holding placards in support of the rule of law and Constitution, as well as expressing solidarity with the CJP. However, the Pakistan Bar Council distanced itself from the gathering, saying it did not ask the lawyers to converge on the Constitution Avenue.
The court also directed Finance Additional Secretary Amir Mehmood and Defence Secretary Hamood Zaman to convince the court about the overwhelming impediments blocking the holding of the polls in Punjab province. Secretary defence requested the court for an in-camera briefing but the court asked him to furnish what he has to say in a sealed envelope.
During the proceedings, the Chief Justice again offered to slash the judges’ salary as well as that of the ECP employees-related expenditure head to bridge the gap of Rs20bn required for polls.
The Attorney General of Pakistan (AGP) also requested the three-member bench that the matter should be heard by the other six judges who have not heard the polls matter, or the current PTI petition of PTI must be dismissed given the majority judgment of 4-3 passed on March 1. He stressed that the provincial governments of the Khyber-Pakhtunkhwa and Punjab were dissolved to achieve a political objective i.e. to force general elections.
The AGP added that holding free and fair general elections — likely to be held later this year — may not be possible in the presence of elected governments in Punjab and Khyber-Pakhtunkhwa. However, the Chief Justice brushed aside the 4-3 controversy saying nobody had recused from the nine-member bench, rather all judges had requested him to reconstitute the bench.
The bench was reconstituted by me using mydiscretion as the CJP for which I was not answerable, Justice Bandial said, and added the opinion of Justice Justice Athar Minallah and Yahya Afridi was part of the record but not part of the judgment. The Chief Justice also trashed the concept of order of the day in case of dissenting judgement by asking the Attorney General to come up with any law requiring the issuance of an order of the court.
Referring to the March 31 circular issued by the registrar, the Chief Justice observed that Justice Isa’s order was on the administrative side and expressed a desire to postpone all cases under Article 184(3) instead of mandatory directions. He further observed that the full court comprising 15 judges was not possible since all the judges were not available.
Later, Irfan Qadir, who represented the ECP, urged the court to resolve its internal conflict and added that this case of “immense importance should not be proceeded with”. He also argued the court that the President’s announcement to hold the Punjab Assembly elections on April 30 was not legal since it was not done on the advice of the prime minister.
