A day after Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail issued a scathing dissenting note on the March 1 Punjab and Khyber Pakhtunkhwa verdict, Chief Justice of Pakistan (CJP) Umar Ata Bandial noted that it was their “opinion” and no connection to the ongoing case.
The CJP passed the memo when the Supreme Court resumed hearing a petition by the Pakistan Tehreek-e-Insaf (PTI) challenging the Election Commission of Pakistan’s (ECP) decision on the Punjab and Khyber Pakhtunkhwa elections.
CJP Bandial heads the five-judge larger bench hearing the plea. Besides the CJP, the bench includes Justice Ijaz Ul Ahsan, Justice Munib Akhtar, Justice Amin-Ud-Din Khan and Justice Jamal Khan Mandokhail.
Khyber Pakhtunkhwa Governor Haji Ghulam Ali also urged the electoral body to hold general elections on the same day (October 8) as the Punjab polls in view of growing security threats from terrorist groups operating from the border areas of Pakistan and Afghanistan.
The Election Commission of Pakistan (ECP) was challenged by Imran khan led to the party’s decision to deliver the Punjab polls by 8 October.
The electoral body’s announcement came after financial and security agencies expressed their inability to support the electoral process.
At the beginning of the hearing, CJP Bandial welcomed the newly appointed Attorney General for Pakistan Mansoor Usman Awan. Seeing “good friend” Farooq H Naek, the CJP remarked that the court would need the help of senior counsel in the matter.
The CJP observed that the court did not want to drag this matter.
He said the ECP’s jurisdiction under yesterday’s order would be considered by the court while the ruling coalition parties’ request to participate in the case would be heard later.
“Rule of law and democracy are two sides of the same coin. There should be mutual tolerance, patience and law and order,” observed CJP Bandial.
To this, the CJP assured the senior lawyer that no one was denying Naek’s importance, but he personally believed that they should not engage in a legal dispute.
He said the parties had to decide the direction of the circumstances while the court should have regard to the facts.
“My position on the March 1 verdict is that the law empowers the president to set the date for the election. If you want clarification on the March 1 decision, file a separate application,” the CJP said. He added that the “simple question” in the case was whether the ECP could change the election date or not.
“If the ECP has power, then the matter will be resolved,” the CJP said
On the other hand, the Attorney General argued that if the court’s decision was 4-3, then there was no ranking. He added that unless there is a court order, the president cannot set a date for the election.
The AGP said The March 1 decision should be decided first.
To this, CJP Bandial remarked that right now it is not a question of giving the date of the elections but of a postponement. He added that elections are necessary for democracy.
the CJP observed “Two honourable judges have decided. It is the opinion of these two judges but it is not relevant to the present case. Do not sidestep the sensitive issue,” The AGP responded that this current petition seeks the execution of the orders in the March 1 judgement.
To this, CJP Bandial remarked that the bench members are there to examine the issues raised in the petition. He added that the jurisdiction of the apex court was not limited to the petition alone.
At this point, the AGP intervened and appealed for the creation of a full court in the matter.
the AGP said “It is a requirement that it is an important matter and if the court deems it appropriate, a full court should be constituted,”
However, Justice Mandokhail noted that the number of judges who upheld the March 1 decision was an internal matter for the apex court.
he asked, “Just say whether the Constitution requires elections to be held in 90 days or not and whether the ECP can move the date of elections,”.
After hearing Justice Mandokhail, the CJP thanked the judge for clarifying the matter.
Meanwhile, PTI’s lawyer Ali Zafar argued that every institution must work while adhering to its constitutional limits.
To this, CJP Bandial remarked that he expected PTI’s top leadership to have the same behaviour expressed by the lawyer. He also asked the lawyer if he had spoken to the party’s senior leadership.
“PTI would 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 disagreements, saying that the country has experienced violence, intolerance and an economic crisis.
At the same time, Barrister Zafar argued that these crises will intensify if the elections are postponed.
CJP Bandial then remarked that he would order the government only if the PTI took the initiative.
Justice Khan further asked whether the 90-day period before elections could be shortened.
To this, Justice Ahsan remarked that the ECP is bound to provide the election schedule within 90 days. While advocate Zafar argued that the election watchdog cannot revoke the order once it has been issued.
“Unfortunately, no one doubts that elections cannot now be held in 90 days,” Justice Mandokhail observed. He also wondered if there was a democratic way to solve the problem.
Justice Mandokhail lamented that no one cares about the constitution in Pakistan anymore, but elections must be held at all times.
“The question is who has the authority to extend the duration of 90 days and whether the assembly should be dissolved at the behest of a single person,” the justice added.
The PTI lawyer argued that the elected representatives are the Prime Minister and the Chief Minister.
To this, Justice Mandokhail remarked that the assembly can be dissolved if the prime minister’s own party moves a no-confidence motion against the prime minister.
Barrister Ali Zafar, however, argued that the assembly could not be dissolved in the event of a no-confidence motion.
Justice Mandokhail observed that Parliament should review the power of a single person to dissolve the assembly.
To this, Advocate Zafar said that Parliament can discuss the authority of the Prime Minister and the Prime Minister.
“The Constitution does not allow any postponement of the fundamental right to vote,” he said, adding that efforts to postpone elections had already been made in the recent past.
Zafar added that the ECP claimed it could not give a date, while the governor said it was his power to give a date for the elections.
On this point, Justice Ahsan noted that the implementation of the Supreme Court judgement was done as the election schedule was issued. However, the question before the bench was whether the ECP has the power to change the deadline fixed by the President.
“Can the Election Commission postpone [the election] for more than 90 days,” he asked.
Meanwhile, CJP Bandial observed that Section 58 of the Election Act does not allow postponement of elections.
Barrister Zafar, however, argued that the ECP based its order on two clauses of the constitution.
Justice Mandokhail then interjected that the election watchdog excused himself from fulfilling a constitutional duty, giving reasons.
He asked, What would have happened if the ECP had not given the date of 8 October?
To this, Justice Ahsan remarked that the election body could have approached the president to change the election date.
“All administrative institutions are bound by cooperation with the ECP. The Electoral Commission can only act if there are valid reasons for doing so,” he added.
Barrister Zafar noted that Article 220 of the Constitution binds all governments and institutions to cooperate with the ECP, but the electoral body took the decision after receiving information from the institutions only.
He urged the court to ask the election watchdog why it did not use its constitutional powers. He argued that Article 5 of the Constitution would be invoked if the administrative authorities did not cooperate.
The ruling alliance decides to stand aside just in case
Hours before hearings resumed on Tuesday, the ruling alliance decided to withdraw from the case.
Pakistan Muslim League Nawaz (PML-N), Pakistan Peoples Party and Jamiat Ulema-e-Islam-Fazl (JUI-F) have filed applications in the SC to become parties and will submit their position when the hearing resumes.
The lawyer said that under the ECP, Article 254 gives the power to postpone the poll.
In this court, Mandokhail observed that the date of the election body was already after 90 days. He asked if the date after 90 days was correct.
Advocate Zafar conceded that the surveys could not be conducted within 90 days even if the court issued the order right now.
At this point, Justice Mandokhail noted that the President had also given a date after the expiry of the 90-day period.