The Chief Justice implores other judges to confine internal matters to their chambers.
ISLAMABAD: On Wednesday, the Supreme Court resumed hearing Pakistan Tehreek-e-(PTI) Insaf’s petition against the Election Commission of Pakistan’s (ECP) postponement of elections for the Punjab Assembly, as the government moved to reduce the authority of the Chief Justice of Pakistan (CJP).
The matter has been assigned to a five-member bench led by Chief Justice Umar Ata Bandial and including Justices Ijazul Ahsan, Munib Akhtar, Aminuddin Khan, and Jamal Khan Mandikhail.
One of the judges on the five-member bench, Justice Jamal Khan Mandokhail, made it clear that the case was dismissed by a majority of 4-3 because the chief justice did not issue a “order of the court” Despite this, the proceedings were marred by ambiguity regarding the earlier apex court ruling of March 1 as one of the five-member bench’s judges, Justice Jamal Khan Mandokhail, stated that the case was dismissed by a majority of 4-3.
Earlier, Chief Justice Bandial overruled Usman Awan’s objection to the bench hearing the PTI’s petition as a “technical point” to be raised in a separate application.
Prior to that, on Monday, Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail cast doubt on the judgement handed down in the March 1 suo motu regarding elections in Khyber Pakhtunkhwa and Punjab, stating that the proceedings were dismissed by a majority of 4-3 and arguing that the chief justice of Pakistan lacked the authority to restructure benches without the consent of the respective judges.
Today, the supreme court is expected to rule on the case.
The listening
Pakistan People’s Party (PPP) attorney Farooq Naek appeared before the court and requested that the party be included in the case as a defendant.
When asked by the chief justice if the application was on behalf of the Pakistan Democratic Movement (PDM), the solicitor stated that the PPP was not a part of the PDM.
The chief justice instructed the solicitor for the electoral watchdog to present his arguments first.
In contrast, Justice Mandokhail stated that four judges “dismissed” the proceedings in the apex court’s March 1 ruling regarding elections in Khyber Pakhtunkhwa (KP) and Punjab.
According to Justice Mandokhail, the verdict of the four judges in the suo motu case was the “order of the court,” whereas the chief justice “had not issued an order of the court.”
He questioned how the president could give an election date and how the ECP could issue an election schedule without an order. He mentioned that the four judges who dissented in the suo moto case were his “brothers.”
Justice Mandokhail questioned why a full court should be convened and stated that the same seven-member bench should hear the case in response to the PPP’s attorney’s request for a full court bench to hear the case.
However, Naek argued that the current situation necessitated the formation of a full bench, adding that the country was “confused.” He added that clarification was necessary regarding the 1 March Supreme Court decision.
CJP Bandial instructed Naek to file a written request with the court.
Sujeel Swati, an attorney for the ECP, was called to the podium and questioned by Justice Mandokhail about the order in which the ECP announced election dates.
“The Election Commission has implemented the March 1 decision,” Swati stated, adding that, in response to the court’s directive, the ECP approached the president, who set the date for April 30.
He asserted that the schedule was released after the election date was set, and then election preparations began. Swati emphasised that Article 218 of the Constitution was the most important law.
According to Swati, the Constitution also mentions a favourable environment for elections, and Article 224 states that elections must be held within 90 days.
The chief justice commented on how well-prepared the ECP solicitor was.
Swati continued by stating that the court order stated the decision was made by a vote of 3 to 2 and was signed by five judges. According to him, the ECP read and acted upon paragraph 14 and the opening lines of the judgement.
Justice Mandokhail questioned whether or not the ECP saw the short order, and Swati responded that the Commission may have misunderstood.
Justice Muneeb Akhtar stated that the decision was not mentioned anywhere in the dissenting note of March 1. He asserted that the judges had the right to disagree.
“This minority is the law and cannot claim to be the majority,” he said, adding that five judges heard the case and signed the verdict in open court.
Justice Mandokhail noted that the solicitor did not respond to his question, stated that the brief order contained dissenting notes, and stated that he concurred with the decision of Justices Yahya Afridi and Athar Minallah.
“Did the decisions of Justices Yahya Afridi and Athar Minullah vanish into thin air?” he asked.
At this point, the chief justice urged that chambers-related matters remain in chambers.
Justice Mandokhail questioned the ECP’s position following the detailed decision. The CJP instructed the ECP solicitor to continue arguing.
Swati stated that the ECP made efforts to hold fair and transparent elections and proposed election dates pursuant to Section 57. He added that the court’s decision was received on March 3, and the ECP began implementing it based on its interpretation.
“The Election Commission must consider the right to vote and the safety of the citizens,” Swati stated, adding that the president issued the schedule.
Justice Akhtar stated that the ECP’s 22-March ruling was being challenged and inquired as to when it would be issued. The ECP attorney responded that the order was issued on the evening of March 22 and that nomination papers were already received when the order was issued. A few phases of the schedule had been completed before the order was issued, he added.
According to Swati, the army refused to provide personnel to the ECP, citing the Constitutional requirement that elections be held in a transparent, peaceful, and conducive environment. He informed the court that the ECP had sent letters requesting security to the army, rangers, and frontier corps.
Swati also asserted that agencies provided the commission with secret reports that were admissible in court. He stated that these reports demonstrated the presence of the Tehreek-e-Taliban Pakistan (TTP) and other banned groups in the Bhakkar Mianwali region.
The counsel elaborated that 412,000 personnel were requested for election security, but only 298,000 security personnel were available.
Justice Akhtar questioned whether the ECP was aware in February that elections were to be held in October and emphasised that the ECP stated it could not consider deviating from the court’s decision.
He inquired further as to why the election date was set for April 30 if it was to be held in October.
Swati stated, using the reports as context, that the ECP had made a decision. He stated that the commission held a meeting regarding the elections after the grounds were made available and added that the Ministry of the Interior mentioned the law and order situation in a letter dated February 8th.
Justice Akhtar stated that the ECP’s decision indicated that it required Rs25 billion to conduct the election, but the court was told Rs25 billion yesterday. In response, Swati stated that Rs5 billion had already been transferred to the ECP.
The Ministry of Finance stated that it cannot release funds for the election during the current fiscal year, and the finance secretary stated that Rs20 billion cannot be released.
The CJP stated that the election was scheduled for 2023 regardless, and asked if there was no budget for the election in the fiscal year’s budget.
As it was unknown whether the provincial assembly would disband early, the solicitor general responded that the election budget would be carried over to the following fiscal year.
In response to a question from the CJP, the AG clarified that if elections were held simultaneously across the entire nation, Rs47 billion would be spent, but if they were held separately, Rs20 billion would be spent in addition.
Swati reported that the special secretary of interior stated that political figures faced security threats and that, according to the Ministry of the Interior, security threats would be present not only on election day but also during the election campaign. The interior ministry also mentioned the attack on Imran Khan, he added.
The commission’s attorney asserted that the electoral body was informed that it would be “impossible” to provide election security without deploying the military.
In addition, he stated that the special interior secretary stated that elections could not be held peacefully under the current conditions, and that the country’s top intelligence agency had informed the commission that banned organisations had formed parallel governments in K-P.
Swati explained that 443 security threats were received in K-P in 2023, along with 80 terrorist incidents and 170 martyrs. According to confidential reports, he also claimed that it would take six to seven months to resolve the issues.
The chief justice stated that the ECP’s information was “serious” and inquired whether it had been brought to the president’s attention.
“If you did not inform the president of Pakistan, you made a mistake,” Justice Bandial said, adding that the date was set based on the ECP’s recommendation.
Swati added that there were ongoing security operations in numerous regions of Punjab, to which the CJP responded that there was an operation every two to three days in the kutcha regions.
Swati responded that some operations could take up to six months to complete in response to CJP Bandial’s question regarding the completion timeframe.
The solicitor argued that the ECP had no reason to doubt the agencies’ report, to which Justice Akhtar responded that two assemblies had been dissolved.
The ECP’s attorney reiterated that the facts contained in the agency reports could not be disregarded.
Justice Mandokhail questioned whether there was a way to verify these reports, to which the CJP replied that terrorism was an issue. Additionally, Swati responded that incidents were covered in the media.
Despite the fact that terrorism has been a problem in Pakistan for the past two decades, elections were held, according to the CJP. Three elections were held in the 1990s, when communism and terrorism were on the rise, he added.
Justice Bandial added that the ECP proposed new dates without informing the president; however, Swati responded that the president notified the prime minister, not the ECP, of the date change.
The CJP reported five acts of terrorism in Punjab, the most recent being the assassination attempt against former prime minister Imran Khan.
Justice Akhtar questioned whether or not the ECP would conduct elections if the necessary institutions provided assistance. Swati stated that the ECP was willing to conduct elections in Punjab if it received funding and assistance from other state institutions.
Justice Akhtar stated that the ECP referred to itself as a “constitutional body” and that it was the commission’s duty to conduct elections after the dissolution of two assemblies. He added that every human life is valuable and terrorist acts are grave.
In addition, he urged the court to look to the Constitution for a solution to the current situation.
According to Swati, the ECP sent a letter to the federal cabinet on March 20, and the cabinet backed the position of the defence ministry in its reply. He went on to say that the cabinet stated it was unable to approve the deployment of the army for the election and refused to provide funds to the ECP.
Justice Akhtar questioned why the ECP did not approach the court before making a decision and cancelling the election schedule. Swati responded that the ECP adhered to court orders, to which Justice Mandokhail inquired where the signed court order was. Swati maintained that according to the understanding of the electoral watchdog, the vote was 3 to 2.
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