SC salvages its writ by invalidating ECP order, fixes May 14 for Punjab elections

Three-member SC bench reserved verdict on PTI's plea after intense arguments on Monday

ISLAMABAD (Dunya News) –  The Supreme Court of Pakistan on Tuesday declared the order of the Election Commission of Pakistan (ECP) regarding delay in elections in Punjab null and void, ordering polls on May 14. 

Apex court's three-member bench, headed by Chief Justiece Umar Ata Bandial and comprising Justice Munib Akhtar and Justice Ijazul Ahsan, issued the unanimous verdict reserved on Monday after hearing arguments from parties concerned. It also ruled that the ECP carried out an unconstitutional act by delaying the polls. 

Imran Khan-led party had filed the petition regarding delay in elections after the ECP on March 22 put off the polls till Oct 8, citing financial and security constraints. 

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Key Points 

ECP’s March 22 order declared null and void Elections in Punjab to be held on May 14 SC orders govt to provide Rs21 billion funds for elections

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It said the schedule for polls in Punjab had been revised as the ECP order caused delay in the process. The bench also ordered the election commission to issue a schedule for polls in KP.

The apex court has ordered the government to provide Rs21 billion funds till April 10, directing the ECP to approach it if the resources are not provided to it by the government. It also directed the caretaker Punjab government to play its constitutional role, besides ordering the chief secretary to finalise a security plan for elections till April 10. The CJP Bandial-led bench also ordered the government to ensure the provision of security for elections.

Revised Election Schedule

As per the revised schedule issued by court, nomination papers can be submitted till April 10 while the last date for filing the appeals has been fixed as April 17. Candidates will be able to file review petitions on appeals till April 18 while final list of candidates will be issued on April 19. The ECP will allot electoral symbols on April 20.

4/3 or 3/2?

The top court has also rejected claims that its verdict on the suo motu on elections was dismissed with 4-3, saying it was a verdict of 3-2. During the previous hearings, the federal government and Justice Jamal Khan Mandokhail had contended that the bench had dismissed the case with 4-3 majority. An order issued by a bench headed by Justice Qazi Faez Isa regarding suo motu matters had no impact on the elections' case, ruled the court. 

KP Election  

The bench said the matter related to elections in Khyber Pakhtunkhwa would be heard separately.

Reactions

PTI is celebrating the ruling of the top court as its victory. Shah Mahmood Qureshi, talking to media outside the court, the verdict had proved a final nail in the coffin of the doctrine of necessity.

The PTI vice-chairman congratulated Imran Khan, lawyers’ community and the nation on the case victory. He urged the ECP to fulfill its responsibility and ensure transparent elections. Mr Qureshi extended an invitation to all political parties in Pakistan to come together and collaborate towards defusing tensions and creating a peaceful atmosphere in the country.

He asked the party leaders and workers to go into their respective constituencies and start preparations for elections.

Taking to Twitter, PTI leader Fawad Chaudhry wrote, “Congratulations to the nation on the victory of the Constitution! The decision of the Supreme Court is the decision of the rights of every Pakistani citizen.” He said CJP Bandial had become People’s Chief Justice today….. he stood tall against immense pressure, rejected all illegal demands and proved a man of substance.

— Ch Fawad Hussain (@fawadchaudhry) April 4, 2023

Meanwhile, Law Minister Azam Nazir Tarar reiterated that the suo motu case was dismissed with 4-3 majority verdict, adding that the chief justice should have called a full court meeting to end the ambiguity on it.

Security Heightened 

Meanwhile, a heavy contingent of police, Rangers and FC was deployed while barbed wires placed around the top court as part of security measures to avoid any untoward situation.

Furthermore, only relevant people were allowed to enter the premises of court after verification. 

Monday's Hearing

At the outset of Monday's hearing, Chief Justice Umar Ata Bandial asked PPP counsel Farooq H. Naek whether his party had boycotted the proceedings.    

Attorney General for Pakistan Mansoor Awan, ECP lawyers Irfan Qadir and Sajeel Swati and PTI lawyer Ali Zafar were also present in the courtroom as the hearing began. Also in attendance were secretaries of finance and defence.  

“How can you boycott the case and at the same time attend the hearing," Justice Akhtar said. "How can anyone boycott proceedings of the case," he inquired. He said newspaper reports suggested that the government had boycotted the proceedings and how could he (Mr Naek) give arguments. He also asked Mr Naek to read out the joint statement and expressed displeasure with the language used in it.  

The CJP asked the PPP lawyer if he wanted to become a part of the proceedings and Mr Naek assured that his party did not boycott the hearing. Justice Bandial said something else was written in the newspapers and the PPP counsel replied that his party had reservations on the maintainability of the petition. The CJP asked Mr Naek to give assurance in writing that the party had not boycotted the hearing. 

Justice Bandial then inquired about the directions the AGP had received. Mr Awan replied that the government worked under the Constitution and could not boycott the proceedings. He, however, claimed that the PTI petition was based on the SC’s March 1 verdict in which the apex court had instructed the president to select a date for elections in Punjab and the governor to pick a date for polls in KP. The KP governor did not select a date until the petition was filed, he said.

The question had been raised on how could the ECP give the date of Oct 8 for polls, the CJP said. He said only the apex court had the authority to delay elections and the Election Commission of Pakistan had no such power to do so. 

The CJP also said the circular issued by the Supreme Court did not overrule the order given by a bench, headed by Justice Qazi Faez Isa.  

Meanwhile, Justice Ahsan said the actual matter under consideration was the ECP’s decision to postpone elections. The commission, he said, was bound to follow the court orders.  

The AGP said that during the first round of the hearings, a nine-member bench had conducted the proceedings. “On Feb 21, we received the order of the court which included dissenting notes from two judges. The two judges had dismissed the case in the first hearing,” he said.  

However, the CJP said only one judge had dismissed the proceedings. “Justice Athar Minallah had not mentioned rejecting the request in his dissenting note,” he said. 

“Justice Yahya Afridi had agreed with Justice Minallah in his note,” the AGP argued to which Justice Bandial stated that the court had understood Awan’s stance.

Justice Akhtar recalled that on Feb 27, a nine-member bench had submitted the matter to the CJP for the reconstitution of the bench. The new bench had five judges, he added. 

CJP Bandial also remarked harmony among judges was crucial for the Supreme Court. He said judicial proceedings were made public but consultations among judges were considered an internal matter.

PML-N govt's fresh plea    

Hours earlier, the Shehbaz-led government filed a fresh petition in the Supreme Court, seeking the reconstitution of the bench hearing the elections' delay case without judges who heard the suo motu notice.  

A miscellaneous plea was filed by Attorney General for Pakistan Mansoor Usman Awan ahead of the scheduled hearing of the suo motu on the PTI petition challenging the order of the Election Commission of Pakistan (ECP) for postponing the Punjab election to Oct 8. 

Justice Mandokhail and Justice Aminuddin earlier recused themselves from hearing the case. The bench was broken up twice after the two judges decided not to be part of the bench. The three-member bench summoned the secretaries of interior and finance. 

During the previous hearing, the request of the Attorney General for Pakistan to form a full court was rejected by the Supreme Court. In the case, the arguments of PTI lawyer Barrister Ali Zafar and Election Commission’s lawyer Sajeel Swati were completed. 

At the previous hearing, the chief justice had observed in his remarks that there would be important news on Monday. "We have shown restraint," he remarked. The government would have to forget the past, he observed. 

It should be noted that in the election case, the Pakistan Peoples Party, the PML-N and the JUI-F have requested to become parties and constitution of the full court.

A number of personnel representing the Islamabad police, Frontier Corps and Rangers have been deployed in and outside the Supreme Court. 

The federation's plea 

The petition has requested the Supreme Court to dismiss the election delay case in view of the majority (4-3) order/judgment of March 1. It further stated that the proceedings in the instant petition may kindly be postponed in light of the order passed by Justice Qazi Faez Isa, postponing all the proceedings in suo motu matters.

“This Hon’ble Bench, in view of submissions made in paragraphs 11 and 12, may graciously recuse from hearing the instant petition and a bench comprising of all remaining Hon’ble Judges of this court, who did not hear SMC No. 1/2023, CPs No 1 and 2 of 2023, may kindly be constituted to decide the questions raised herein,” the plea requested. 

Lawyers express solidarity with CJ 

A good number of lawyers reached the SC after crossing hurdles and expressed solidarity with Chief Justice Bandial. PTI leader Azam Swati is also present. Some lawyers raised slogans in favour of judiciary on the arrival of judges. 

PTI slams govt for sabotaging constitution  

PTI leaders slammed the Shehbaz-led government for “attacking” the Constitution, pinpointing the PML-N for pressurising the country's top court. 

Speaking to reporters in Karachi on Sunday, PTI Vice Chairman Shah Mahmood Qureshi said the ruling coalition’s decision to file a reference against three SC judges was a signal to pressurise them. 

SC to be urged to clear uncertainty 

On Sunday, Prime Minister Shehbaz Sharif held a meeting with legal bigwigs of PML-N and discussed possible outcomes of the case. Law Minister Azam Nazir Tarar briefed the participants on the legal complexities in the case and the chances of the three-member apex court bench fixing responsibilities for violation of its March 1 verdict.

PML-N leader Malik Ahmed Khan said they would first try to convince the court that it should clarify the “ambiguity” surrounding its March 1 order in the suo motu proceedings. He said they would again demand that a full-court bench should be formed to hear the case to avert any controversy and if it was rejected, they would consider boycotting the court proceedings.

Islamabad police limit entry 

The Islamabad police announced through its Twitter handle that visitors, who have to appear in cases or who have got special permission from the administration, would be entering the SC. 

ترجمان اسلام آباد کیپیٹل پولیس ۔ کل سپریم کورٹ آف پاکستان میں وہی افراد داخل ہوسکیں گے جن کے مقدمات زیرسماعت ہوں گے یا جن کو سپریم کورٹ انتظامیہ کی طرف سے اجازت نامہ جاری ہوگا۔ قانون کا احترام سب پر لازم ہے اور اس کا نفاذ برابری کی سطح پر کیا جائے گا۔ ریڈ زون میں تعینات…

— Islamabad Police (@ICT_Police) April 2, 2023