Chief Justice of Pakistan (CJP) Umar Ata Bandial said on Tuesday that the opinion of two judges in the previous Supreme Court (SC) verdict over provincial assembly elections is not relevant in the case concerning the postponement of Punjab Assembly polls.
The CJP passed the remark when the Supreme Court resumed the hearing on Pakistan Tehreek-e-Insaf's (PTI) petition challenging the Election Commission of Pakistan's (ECP) decision on Punjab and Khyber Pakhtunkhwa elections.
CJP Bandial is heading the five-member larger bench hearing the plea. Apart from the CJP, the bench includes Justice Ijaz Ul Ahsan, Justice Munib Akhtar, Justice Amin-Ud-Din Khan and Justice Jamal Khan Mandokhail.
The Imran Khan-led party had challenged the Election Commission of Pakistan's (ECP) decision to defer the Punjab polls till October 8.
The electoral body's announcement came after financial and security authorities expressed their inability to support the electoral process.
Following this, Khyber Pakhtunkhwa Governor Haji Ghulam Ali also urged the electoral body to hold general elections on the same date (October 8) as the Punjab polls given the growing security threats from terror groups operating from the Pakistan-Afghanistan border regions.
At the outset of the hearing, CJP Bandial welcomed newly appointed Attorney General for Pakistan Mansoor Usman Awan. While seeing "good friend" Farooq H Naek, the CJP remarked that the court would need assistance of the senior lawyer on the matter.
The CJP remarked that the court does not want to drag this matter.
He said that ECP's jurisdiction as per yesterday's order will be seen by the court, while the request of the ruling coalition parties to become party in the case will be looked into later.
"Rule of law and democracy are two sides of a same coin. There should be mutual tolerance, patience and law and order" CJP Bandial observed.
Meanwhile, Naek interjected and told the bench that they were also stake holders in the case.
At this, the CJP assured the senior lawyer that no one denied Naek's importance but he personally believed that they shouldn't engage in a legal controversy.
He said that the parties had to decide the direction of circumstances while the court had to keep the facts in view.
“On the March 1 verdict my stance is that the law empowers the president to give a date for the elections. If you want clarification on the March 1 decision then file a separate petition,” said the CJP. He added that the “simple question” in the case was whether the ECP can change the election date or not.
“If ECP has the power then the matter will be resolved,” said the CJP
On the other hand, attorney general contended that if the court decision was 4-3 then there is no order. He added that if it was not a court order then the president cannot give the election date.
“The March 1 decision should be decided first,” said the AGP.
At this, CJP Bandial remarked that right now the case was not of giving the election date but of the delay. He added that elections were necessary for a democracy.
“Two honourable judges gave a decision. It’s the opinion of those two judges but is not related to the current case. Do not bypass a sensitive matter,” remarked the CJP.
The AGP responded that that current petition was seeking the implementation of the court orders in the March 1 judgment.
At this, CJP Bandial remarked that the bench members were there to review the questions raised in the petition. Apex court's jurisdiction wasn't limited to just the petition, he added.
On this point, AGP interjected and appealed for the formation of a full court on the matter.
“It is a request that this is an important matter and if the bench deems it appropriate then a full court should be formed,” said the AGP.
However, Justice Mandokhail remarked that the number of judges who favoured the March 1 ruling was an internal matter of the apex court.
"Just tell if the Constitution requires conducting elections in 90 days or not, and whether the ECP can postpone the date of election," he asked.
Upon hearing Justice Mandokhail, the CJP thanked the judge for clearing the matter.
Meanwhile, PTI's lawyer Ali Zafar maintained that every institution has to work while staying in its constitutional bounds.
At this, CJP Bandial remarked that he expected the PTI's senior leadership to have the same behaviour as expressed by the lawyer. He also asked the lawyer whether he talked to the senior party leadership.
"PTI would have to be the first [one to speak] because they have approached the court," the chief justice stated. He advised the parties of the case to avoid differences saying that there was violence, intolerance and economic crisis in the country.
At this, Barrister Zafar maintained that these crises would intensify if the elections are delayed.
CJP Bandial then remarked that it would order the government only if PTI takes the initiative.
Moving on, Justice Khan asked if the 90-day period before the election could be shortened.
At this, Justice Ahsan remarked that the ECP was bound to give the schedule for polls within 90 days. While, Barrister Zafar maintained that the electoral watchdog couldn't withdraw the order once given.
“Unfortunately, no one has any doubt that elections now can't be held in 90 days,” remarked Justice Mandokhail. He also wondered if there was a democratic way to resolve the issue.
Justice Mandokhail lamented that no one cared about the Constitution in Pakistan anymore but elections have to be held under any circumstances.
"The question is, who has the authority to extend the duration of 90 days and if the assembly should be dissolved at a single person's behest," the justice added.
PTI's lawyer argued that the prime minister and chief minister are the elected representatives.
At this, Justice Mandokhail remarked that the assembly can be dissolved if the prime minister’s own party moves a no-confidence motion against him.
However, Barrister Ali Zafar contended that the assembly couldn't be dissolved in case of a no-confidence motion.
Justice Mandokhail observed that the Parliament should review the authority of a single person to dissolve the assembly.
At this, the Barrister Zafar said that the Parliament can debate over the authority of PM and CM.
"The Constitution doesn't allow any delay in the fundamental right of election," he maintained, adding that efforts to defer the polls were made in the recent past.
Zafar added that the ECP maintained that it couldn't give a date, while the governor said it was his authority to give the polls date.
On this point, Justice Ahsan remarked that the implementation on the apex court's judgement had been done as the election schedule was issued. However, the question before the bench was whether the ECP had the authority to change the date given by the president.
"Can the election commission delay [elections] beyond 90 days," he asked.
Meanwhile, CJP Bandial remarked that the Election Act's Section 58 did not allow deferment of the polls.
At this, Barrister Zafar maintained that the ECP based its order on two clauses from the Constitution.
Justice Mandokhail then interjected that the electoral watchdog had excused itself from fulfilling the constitutional duty while stating the reasons.
“What would have happened if the ECP hadn't given the date of October 8,” he asked.
At this, Justice Ahsan remarked that the electoral body could have approached the president for changing the election date.
"All administrative institutions are bound to cooperate with the ECP. Election commission can approach only if there are solid reasons," he added.
Barrister Zafar remarked that the Article 220 of the Constitution binds all the governments and institutions to cooperate with the ECP, but the electoral body made a decision after taking input from the institutions only.
He urged the court to question the electoral watchdog why it did not use its constitutional powers. He argued that Article 5 of the Constitution would apply if the administrative institutions don't cooperate.
The lawyer said that according to ECP, Article 254 gives the authority of deferring the polls.
At this Justice Mandokhail remarked that the electoral body's date was already after 90 days period.
Was the date after 90 days period was correct, he asked.
Barrister Zafar conceded that the polls couldn't be conducted within 90 days even if the court issues an order right now.
At this Justice Mandokhail remarked that the president had also given a date after the 90-day period.
"Article 254 can be invoked after the job was done but not before that," he added.
Moving on, Justice Ahsan observed that in practice, if the election is not possible in 90 days, the court could issue an order.
However, Justice Akhtar remarked that if the conducting of elections were not possible, the Election Commission should have approached the court.
He explained that the court could be approached for the polls on the same day if another assembly was dissolved before the date of elections for an assembly.
"The election commission cannot automatically issue an order to postpone elections. If the Election Commission can postpone the election for 6 months, then it can do it for six years as well,” he observed.
At this, Justice Mandokhail remarked: “The constitution is silent on who can move the elections ahead”.
“Shouldn't parliament amend the constitution?” he asked. It will be the best if the Parliament amends it, the justice added.
“The question is what will happen to the elections that are to be held until the amendment is made,” Justice Akhtar remarked.
At this, Barrister Zafar maintained that the elections could never be held if they consider the basis on which elections were postponed.
Justice Akhtar then remarked that if was a matter of funds, “how will the caretaker government provide the funds?”
"Will the problems present today not be there on October 8," he asked.
At this, Barrister Zafar contended that the ECP had said in its order of March 22 that the funds had not been provided.
He argued that the election commission had never requested funds.
Justice Akhtar then remarked that he had read the premier's statement in the newspaper. “The federal government says that Rs500 billion tax revenue had been collected till March,” he added.
He said that it was surprising that the government was unable to spare Rs20 billion out of those Rs500 billion for the elections.
Hours before the hearing resumed on Tuesday, the ruling alliance decided to become a party in the case.
The Pakistan Muslim League Nawaz (PML-N), Pakistan Peoples Party and Jamiat Ulema-e-Islam-Fazl (JUI-F) have filed the pleas in the SC to become a party, and will present their stance when the hearing resumes.
