ISLAMABAD, MAR 28: Chief Justice of Pakistan (CJP) Umar Ata Bandial on Tuesday 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 passed these remarks as the apex court resumed hearing PTI’s petition challenging the Election Commission of Pakistan’s (ECP) decision to postpone general elections to the Punjab Assembly till October 8.
A five-member larger bench — comprising Chief Justice of Pakistan Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Aminuddin Khan and Justice Mandokhail — is hearing the case.
In a surprise move on March 22, the ECP had put off the elections for more than five months citing the deteriorating security situation in the country and the unavailability of finances and security personnel. Subsequently, the PTI challenged the commission’s order in the SC.
Ahead of today’s hearing, the coalition parties — PML-N, PPP and JUI-F — submitted a request in the court to become respondents in the case.
During the proceedings, PTI lawyer Barrister Ali Zafar, Attorney General of Pakistan (AGP) Mansoor Awan, PPP lawyer Farooq H. Naek and others were present.
The hearing
At the outset of the hearing today, CJP Bandial welcomed AGP Awan and said that the court looked forward to receiving assistance for him.
The top judge remarked that “we don’t want to stretch the matter”, stating that the question in front of the court was simple: Can the election date be extended or not?
“If the ECP has the authority [to extend the date] then the matter will be over,” he said.
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 court judge added.
Here, PPP lawyer Farooq H. Naek said that there was “anarchy and fascism” in the country today.
Meanwhile, the attorney general mentioned the dissenting notes of two SC judges.
On Monday, Justice Mansoor Ali Shah and Justice Mandokhail cast doubt on the judgement handed down in the March 1 suo motu regarding elections in Khyber Pakhtunkhwa and Punjab, saying that the proceedings stood dismissed by a majority of 4-3, and contended that the CJP does not have the power to restructure benches without the consent of the respective judges.
Referring to this judgement, AGP Awan said that if the court’s decision [on March 1] was passed by a four-three majority, then there was no order that was violated.
“If there was no court order, then the president could not give a date for elections,” he said, urging the bench to first take a decision on the March 1 verdict.
However, CJP Bandial said: “The question here is not about the judgement but about the ECP’s power.”
The AGP contended that the PTI petition was based on the ECP’s violation of the SC orders.
“The members of the bench are sitting here to review the questions raised in the petition. You [AGP Awan] are relying on a technical point,” the top judge said, adding that the SC’s jurisdiction was not limited to the petition.
Right now, he continued, the matter is not about giving the poll date but delaying it.
“Elections are necessary for democracy … don’t spoil the matter on technical grounds,” the CJP told Awan. “The SC’s March 1 order has already been implemented. Don’t raise this matter or present it in court again.”
Justice Manokhail pointed out that “the number of judges [who issued] the March 1 judgement is Supreme Court’s internal matter”.
He then inquired whether holding elections within the stipulated time of 90 days was not a constitutional requirement. “Can the ECP delay the date for polls?”
At that, the CJP thanked Justice Mandokhail for “clearing the matter”.
“People across the country are standing in queues for subsidised wheat today … it is the responsibility of the PTI and government to improve the situation in the country,” he said, stressing that it was important to respect all of the national institutions.
“But every institution has to work within its constitutional limits,” Barrister Zafar stated here to which the CJP said that the same was expected from the PTI leadership as well.
“PTI has to take the initiative first because it has approached the court,” the top judge said. “There is violence and intolerance in the country today … look at the economic situation … people are waiting in long lines for subsidised wheat.
“Instead of quarrelling among each other, think of these people,” CJP Bandial urged.
For his part, Barrister Zafar said that the crises would escalate if the elections were delayed.
Meanwhile, Justice Aminuddin Khan inquired whether the election schedule could be further reduced from the mandated 90-day period to which Justice Ahsan responded that the ECP had the authority to adjust the election schedule within the 90-day period.
However, he said the ECP could not delay the polls beyond the specified period.
Here, Justice Mandokhail interjected that the 90-day period had already elapsed, and expressed his disappointment that the Constitution was not being taken seriously in the country.
“Elections in the country will be held anyway, but the question is who will extend the date [for polls] beyond 90 days,” he asked. “There is another question that can the assemblies be dissolved on the whim of one man?”
For his part, Barrister Zafar argued that both the prime minister and chief minister were elected representatives to which Justice Mandokhail pointed out that the assembly could be dissolved if the prime minister’s political party intended to bring a vote of no-confidence. Barrister Zafar agreed to this.
The judge then questioned whether the matter should not be debated in parliament. In response, the PTI’s counsel stated that parliament could indeed debate the powers of the prime minister and chief minister.
At one point during the hearing, Justice Ahsan highlighted that the SC’s March 1 decision had been successfully implemented. He recalled that the ECP had issued a schedule on the poll date proposed by the president.
Barrister Zafar also said that the ECP had adhered to the SC’s order as far as elections in Punjab were concerned.
“But the question is does the ECP have the authority to alter the date given by the president? Can the elections be delayed beyond 90 days?” Justice Ahsan asked.
The CJP also inquired about the ECP’s powers to change or reissue the date for elections.
He observed that Section 58 of the Elections Act did not permit the postponement of the polls. Here, Barrister Zafar highlighted that the ECP had relied on two articles of the Constitution.
Justice Mandokhail stated that the ECP had provided reasons for failing to fulfil its constitutional responsibilities and then asked what would have happened if the ECP had not announced the October 8 date for the elections.
Justice Ahsan pointed out that the ECP had the option of contacting the president to request a change in the election date, and reiterated that all administrative departments were obligated to cooperate with the election commission.
However, Barrister Zafar pointed out that Article 220 of the Constitution restricted government institutions from interfering with the ECP’s functions. The PTI counsel accused the ECP of disregarding its constitutional obligation and making the decision on the poll date solely based on the opinions of other institutions.
The counsel urged the court to question the commission about its actions and warned that Article 5 of the Constitution — which talks about the loyalty to State and obedience to the Constitution and law — would come into effect if administrative departments refused to cooperate.
Meanwhile, Justice Mandokhail observed that the date given by the ECP was already beyond the stipulated period of 90 days and asked whether this was acceptable. He suggested that the court could intervene and issue a verdict if elections were not held within the 90-day period.
Justice Akhtar remarked that the ECP should have approached the court if elections were not possible. “[The court] can be approached for elections on the same day if an assembly has been dissolved during the schedule of another assembly.”
The ECP, he continued, cannot issue an order itself. “If the election commission can delay elections for six months it can do the same for two years too.”
Justice Mandokhail noted here that the Constitution was silent when it came to deciding who had the authority to delay the polls. “Should the parliament not amend the Constitution,” he asked rhetorically to which Justice Akhtar said that if the parliament brought amendments everything would be sorted.
“But the question is what will happen to the elections that are to be held until the amendment is made,” he wondered.
Here, Barrister Zafar said that from the basis of the reasons why the elections were delayed, it seemed that election would never be held.
“If the problem is related to funds, then how will the caretaker government issue them?” Justice Akhtar asked.
Justice Ahsan also questioned how could it be determined that the problems that existed today would not be there on October 8 as well.
The PTI lawyer replied that the ECP had said that it was not provided with funds for the elections to which Justice Akhtar stated that he had read a statement given by the prime minister in newspapers.
“The federal government says that Rs500 billion tax was collected till February … it is surprising that out of Rs500 billion, Rs20 billion couldn’t be given [for elections],” the judge pointed out.
Barrister Zafar recalled that in its order, the ECP had quoted the finance secretary as saying it would be difficult to release the funds. “It is to be noted that Finance Ministry had used the word difficult, not rejected [the request].”
Justice Akhtar said that the finance secretary had stated that it did not have funds for elections today and in the future. “This means that elections will not take place at all. How can a government secretary issue such a statement?”
He also noted that after it was collected, the tax was deposited in the federal consolidated funds.
Here, PPP’s Naek contended that federal consolidated funds were only spent with the approval of the Parliament to which Justice Akhtar asked: “If the assembly is dissolved, will the funds not be released?”
The lawyer replied that in the present scenario, a National Assembly was functioning, elaborating that a new assembly could approve the expenditure. “Only the ECP could provide an explanation for the finance secretary’s statement,” he added.
Justice Mandokhail also asked how the finance secretary could disburse funds beyond the approved budget to which Barrister Zafar said that this was a technical point.
At one point during the hearing, the CJP proposed that if cuts were made to his salary and others, then the vital task of carrying out elections could be completed.
“An entire budget is not required for elections … the government can cut back its expenditures and release Rs20 billion,” he said. “An Rs20 billion cut can be made in the salaries of judges.”
CJP Bandial highlighted that the country was in the midst of economic turmoil today and emphasised that sacrifice was needed to deal with the crisis. “A five per cent salary cut can cover the expenses of elections,” he said.
The top judge further pointed out that the security personnel in KP conducted the highest number of operations. He revealed that 61 operations in Punjab, 367 in Sindh and 1,245 operations were conducted in KP.
“The situation in Punjab is different than that in KP,” the CJP noted and gave the example of Turkiye, where he said elections were being held in all the areas that were not struck by the earthquake.
Barrister Zafar concurred and said that even 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.”
Here, the apex court 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 to which the PTI lawyer replied, “absolutely not”.
“Absolutely not was said by you [the PTI] to someone else,” the CJP quipped, which led to laughter in the courtroom.
At one point, Justice Mandokhail asked if funds were allotted for elections in the budget, saying that the procedure of taking funds was clearly mentioned in the Constitution.
For his part, Barrister Zafar mentioned that last year the CEC had said the ECP would be ready for elections in November 2022. “But now, the ECP all of a sudden says that it does not have funds … the unavailability of funds is no excuse for delaying elections.”
He further said that the ECP has the electoral staff, but had expressed concerns over the availability of security personnel. “The provision of security was the responsibility of the provinces.”
Govt wants full court to hear case
The government, on the other hand, has urged the SC to constitute a full 13-member bench to hear cases that had “significant national and public impact”, including the matter of elections.
Law Minister Azam Nazir Tarar talks to the media outside Supreme Court on Tuesday.
Tarar claimed that the apex court’s March 1 ruling in the election suo motu case was a 4-3 majority decision, and not a 3-2 verdict.
The CJP had last month constituted a nine-member bench to hear the case, however, the bench was later curtailed to five members after four judges — Justice Jamal Khan Mandokhail, Justice Mansoor Ali Shah, Justice Yahya Afridi and Justice Athar Minallah — in their additional notes to the Feb 23 order raised objections on the constitution of the bench as well as the invocation of the apex court’s suo motu jurisdiction by the chief justice.
Two of these judges had also questioned the SC’s jurisdiction to invoke Article 184(3), which relates to its suo motu powers, in this matter.
Justice Ahsan and Justice Naqvi — whose inclusion to the original bench was opposed by the coalition government and the Pakistan Bar Council — as well as Justice Minallah and Justice Afridi had distanced themselves from the bench.
Talking to the media outside the SC today, the law minister said that collective wisdom was more important in decisions regarding matters of public importance.
Discussing the dissenting notes of Justice Mandokhel and Justice Shah, Tarar said important matters warranted that all judges should be taken on board. He also demanded that the matter should be settled once and for all.
ECP asked to justify delay in polls
As the apex court took up PTI’s petition on Monday, it issued a notice to the ECP and asked the body to come prepared to justify its decision to postpone elections to the Punjab Assembly.
The court also issued notices to respondents namely Khyber Pakhtunkhwa (KP) governor, federal secretaries cabinet, parliamentary affairs and law and justice.
During yesterday’s hearing, CJP Bandial had observed that the spirit of the Constitution does not envisage the making or breaking of governments, but rather focuses on ensuring good governance and bringing happiness to the people by protecting their rights.
At the same time, the CJP had also shared his worries regarding the prevailing hostility, animosity, and bitterness which he said had been “sown into our polity”, while questioning the role political leaders were playing in restoring peace and calm in society and seeking a ‘commitment’ from parties in this regard.
The petition
PTI’s petition, moved by party’s Secretary General Asad Umar, former Punjab Assembly speaker Mohammad Sibtain Khan, former Khyber Pakhtunkhwa Assembly Speaker Mushtaq Ahmad Ghani and ex-lawmakers of Punjab Abdul Rehman and Mian Mahmoodur Rashid, pleaded that the ECP’s decision was in violation of the Constitution and tantamount to amending and subverting it.
In the petition, PTI sought directions for the federal government to ensure law and order, provisions of funds and security personnel as per the ECP’s need to hold the elections.
It also requested the court to direct the Khyber Pakhtunkhwa governor to announce the date for elections to the provincial assembly. Last week, KP Governor Ghulam Ali also proposed Oct 8 as the date for elections in the province. Earlier, he had announced May 28 as the date for polls.
The PTI questioned the ECP’s authority to “amend the Constitution” and asked how it could decide to delay elections to any assembly beyond the period of 90 days from the date of dissolution of the said assembly as mandated by the Constitution.
The petition argued that the ECP was bound to obey and implement the judgments of the Supreme Court and had no power or jurisdiction to overrule or review them.
The ECP cannot act in defiance of the Supreme Court’s directions as it has done in this case which was illegal and liable to be set aside, the petition pleaded. By announcing Oct 8 as the date, the ECP has delayed the elections for more than 183 days beyond the 90-day limit as prescribed in the Constitution.
The petition said that if the excuse of unavailability of security personnel was accepted this time, it will set a precedent to delay any future elections.
The petition added that there was no assurance that these factors — financial constraints, security situation and non-availability of security personnel — would improve by Oct 8.
The “so-called excuse” would mean the Constitution could be held in abeyance every time elections were due, the petitioners feared adding that in the past similar situations have persisted, but elections were held in spite of them.
These situations can’t be used as excuses to “subvert” the Constitution and deny people their right to elect representatives.
“Not holding elections in case of threats by terrorists will amount to giving in to the threats, which is in fact the aim of all terrorist activities,” the petition explained.
