Election case mired in controversy as two judges at odds over suo motu verdict

SC resumes hearing of PTI petition on delay in elections

ISLAMABAD (Dunya News) – The Supreme Court of Pakistan on Wednesday resumed hearing of a constitutional petition filed by the Pakistan Tehreek-e-Insaf (PTI) and others regarding delay in elections in Punjab and Khyber Pakhtunkhwa (KP) assemblies which were dissolved in January this year.

A five-member bench, headed by Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Amin-Ud-Din Khan and Justice Jamal Khan Mandokhail, is hearing the case. 

Former prime minister Imran Khan’s party had challenged the Election Commission of Pakistan's (ECP) order to put off the Punjab polls till Oct 8. The electoral body had cited security and financial constraints as reasons to defer the elections.

Later, Khyber Pakhtunkhwa Governor Haji Ghulam Ali also asked the ECP to hold general elections in the province along with Punjab polls given the security situation in the province. 

In a concurrent development, the federal government on Tuesday tabled the Supreme Court (Practice and Procedure) Bill 2023 in the National Assembly, seeking amendments to moderate Chief Justice of Pakistan's (CJP) powers to take suo motu notice.

Today’s Hearing 

At the outset of Wednesday's hearing, Justice Mandokhail maintained that the top court had dismissed the suo motu case regarding elections with 4-3 majority. He said the majority of the judges did not give an order for elections. “How did the Election Commission hold consultation for elections and how did the president announce the date for polls where there was no order of court?” inquired Justice Mandokhail. He added, “Supreme Court’s order of the court was decision of the four judges”. 

CJP Bandial remarked: “You have given your response”. Justice Mandokhail replied he wanted to add more, adding that he stuck to his dissenting note in the suo motu case. 

At one point, PPP’s lawyer Farooq H. Naek said the full bench should be made to hear the case, adding that the top court should first end ambiguity on the suo motu case’s verdict and decide “whether its 4-3 or 3-2”. 

In reply to Justice Mandokhail’s remarks, ECP lawyer Sajeel Swati said the electoral body had implemented the apex court’s March 1 ruling. “Election Commission approached the president after the court order and then president announced April 30 as poll date,” he said. The apex court’s ruling was issued with 3-2 majority as there were signatures of the five judges on the verdict, he said.

“Had you read the short order in the suo motu case?” Justice Mandokhail questioned. To which, the ECP lawyer replied: “We might have misunderstood it”.

At this point, Mr Naek against requested the court to form a full bench to defuse the situation. CJP Bandial remarked: “You must submit a written application in this regard”.

Minority’s Decision Cannot Prevail Over Majority’s Ruling

Justice Munib Akhtar asked the ECP lawyer if there was mentioned in the short order that it was a 4-3 verdict. To which, Mr Swati said that was why the ECP implemented the order for holding the elections.

Justice Akhtar clarified that the Justice Mansoor Ali Shah and Justice Mandokhail haid not mentioned in the March 1 dissenting notes that it was a verdict by 4-3 majority.

“Both the judges are respected, but the minority decision cannot prevail over the majority decision. The law is clear in this regard that the minority decision has no importance. The decision of Justice Mansoor and Justice Mandokhail is a minority decision,” Justice Akhar added.

'Need to Cool Down Political Temperatures'

CJP Bandial remarked the top court wanted to promote the political process, adding: “No one want delay in elections but there is need to cool down the political temperatures for polls”. It would not possible to go into elections with such political hype, the top judge remarked.

“I had asked political leadership to give assurance that political tolerance will be observed but no political party came forward,” the chief justice remarked.

At which, PTI lawyer Ali Zafar said he was ready to submit an undertaking on the behalf party chairman Imran Khan.

The top judge remarked that elections could be put off in the areas of Punjab and Khyber Pakhtunkhwa where law and order situation was vulnerable. “Delaying the elections in both province is beyond the understanding,” he remarked.

“Tell me, what’s so fascinating about Oct 8 date?” the judge asked. At which, the ECP lawyer said the decision to put off the elections was made after review the reports of relevant agencies.

So it means ECP can extend the date for elections, the top judge inquired. CJP Bandial remarked the court would hear advocate generals of Punjab and KP and “it can hear some other persons if there is a need”.

Previous Hearing

On Tuesday, CJP Bandial questioned whether the electoral body had the authority to extend the date of elections. At the outset of the hearing, CJP Bandial welcomed newly-appointed Attorney General for Pakistan (AGP) Mansoor Awan. The CJP remarked that the court did not want to drag the matter. The question in front of the court was simple: Can the date for elections be extended or not?

“If the ECP has the authority [to extend the date], then the matter will be over,” he said.

Justice Jamal Khan Mandokhail, who is a member of the bench, questioned can the assemblies be dissolved on the whim of one man, adding that elections in the country would be held anyway but the question was who had the authority to extend them beyond 90 days.

CJP Bandial noted that the AGP had raised the point to make political parties respondents in the case. “Rule of law is essential for democracy and without rule of law, a democracy cannot function."

“If the political temperature stays so high, problems will increase,” the apex judge added.

PPP lawyer Farooq H. Naek said there was “anarchy and fascism” in the country today. He sought time for preparation but the CJP said you are a senior lawyer and aware of all the facts. The CJP said the legal issue could not be resolved in a vacuum. "There is a need for discipline in society and political leadership," he observed.

Naek said the Constitution was a living document. Interpretation can only be based on the ground realities. What is good for democracy and the country in the current situation has to be determined. He submitted that political parties were stakeholders, they must be heard.

Justice Jamal Mandokhail asked why this question was not raised in parliament, to which Naek said "it is being under consideration."

The AGP referred to the dissenting note of two judges, on which the CJP remarked that at this time the question was not about the decision but about the authority of the ECP.

The AGP submitted that there was a question of violation of the court order. If there is no order, referring to the 4-3 verdict of the Supreme Court, he added that then there is no question of violation of the verdict. It there is no court order, then the president cannot even give the date. The issue of the court’s March 1 order should be fixed first. In the present case, the plea is about the execution of the judgment.

The CJP remarked that the members of the bench were sitting to examine the question raised in the petition. "Your reliance is on a technical point." The jurisdiction of the Supreme Court is not restricted to the petition. At present, the question is not about giving a date, rather it is about cancellation of the date. Elections are vital for democracy," he added.

CJP Bandial said it had to be determined whether the given date was legal or not. "Is the ECP or anyone else holds authority to dictate to dissolve assembly or not?"

Objecting to the arguments of the AGP, he said the decision of two judges was not relevant to this case; this question could be reviewed later. "The matter in hand is of vital importance, don’t divert attention from it."

The AGP said that in the present case, the question was of implementation of the decision. The CJP replied that the members of the bench were sitting to examine the question raised in the petition, you are raising a technical point. The jurisdiction of the Supreme Court is not limited to the petition.

Justice Bandial said the decision had been implemented.

Attorney General Awan said he would raise the question whether the present plea was admissible or not. He requested to form a full court as the matter was very important.

The CJP said the March 1 decision had been implemented and the matter should not be taken up again. "Don’t spoil the case by raising technical point again and again."

Justice Mandokhail remarked that the number of bench members was an internal matter of the Supreme Court. "Explain whether holding elections in 90 days is not a constitutional requirement? Can the Election Commission cancel the election date?"

The chief justice remarked that he was grateful to Justice Jamal Mandokhail for elaborating on the matter. He remarked that people were standing in queues for flour. The Tehreek-e-Insaaf and the government had the responsibility to improve the situation in the country. Respect all national institutions, the CJP observed.

Advocate Ali Zafar said every institution had to work within its constitutional limits.

On this, the CJP said that such behaviour was also expected from your top leadership also. The PTI has to take the initiative because the party approached the court. There is violence and intolerance in the country. There is economic crisis. There are lines for flour, think of the poor people instead of fighting with each other. Ali Zafar said if the elections were delayed, the crisis would compound.

CJP's remarks on salary cut

During the course of hearing, the CJP also proposed a pay cut for himself and other judges so that the “vital task” of holding elections across the country could be funded and completed. He said “an entire budget is not required for elections … the government can cut back its expenditures and release Rs20 billion.” “A Rs20 billion cut can be made in the salaries of judges,” he remarked.

The chief justice pointed out that security personnel in KP conducted the highest number of operations. He said 61 operations were conducted in Punjab, 367 in Sindh and 1,245 operations in KP. He said the situation in Punjab was different than that in KP and also cited the example of Turkiye where, he said, elections were being held in all the areas that were not struck by the earthquake.

Barrister Zafar said that the Election Act, 2017, highlighted that polling could only be cancelled in areas where problems existed. “It is not possible to postpone the entire elections.”

The judge stated that the polls could only be delayed if an emergency was imposed (in the country). “Does the ECP order mention imposing an emergency?” he asked. The PTI lawyer replied, “absolutely not”. “Absolutely not was said by you (the PTI) to someone else,” quipped the CJP.

Remarks about ECP and analogy

CJP Bandial also remarked that the decision to postpone polls in Punjab was penned in haste by the Election Commission of Pakistan (ECP).

As for why the elections could be delayed, the chief justice said that while travelling by train in Sindh, he saw that it was submerged in water. He said train in Balochistan travelled at the same speed as that of people on foot while the rail route remained disconnected from Quetta. He said elections could be postponed where movement was difficult.