CJP says two judges’ opinion ‘not relevant’ in polls delay case


Says SC will look into ECP’s jurisdiction to defer elections
Chief Justice of Pakistan Umar Ata Bandial has offered pay cut to generate funds for holding elections. The CJP expressed these remarks on Tuesday while hearing Pakistan Tehreek-i-Insaf’s petition challenging the decision to postpone elections in Punjab and Khyber Pakhtunkhwa provinces.
A large five-judge SC bench headed by Chief Justice of Pakistan Umar Ata Bandial and comprising Justice Ijaz-ul-Ahsan, Justice Munib Akhtar, Justice Aminuddin Khan and Justice Jamal Khan Mandokhail is hearing the petition.
At the outset of the hearing, CJP Bandial congratulated the new Attorney General of Pakistan, Mansoor Usman Awan, on assumption of his office. He remarked that the court hoped that it would be benefited from his assistance.
Umar Ata Bandial has observed that the opinion of two top court judges in the previous Supreme Court of Pakistan verdict over the Punjab and Khyber Pakhtunkhwa elections is not relevant in the case concerning the postponement of Punjab Assembly polls.
A five-member bench comprising Chief Justice of Pakistan Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Aminuddin Khan and Justice Jamal Khan Mandokhail is hearing the case.
The CJP remarks came after two Supreme Court judges Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail called for revisiting the “one-man show” powers enjoyed by Chief Justice of Pakistan (CJP) Umar Ata Bandial.
The two SC judges including Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail issued a detailed dissenting note on Punjab and KP election suo motu notice taken by the chief justice.
The dissenting note stated that the CJP has the authority to take sou motu notice and constitute special benches but it will result in criticism and affect the public’s trust in the Supreme Court.
Giving his arguments, AGP Awan referred to the dissent note of two judges of the Supreme Court in which Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail dismissed the March 1 SC decision regarding holding election in Punjab and KP within 90 days by 3-4 majority.
On this, the chief justice of Pakistan remarked that two honourable judges gave a decision. It’s the opinion of those two judges but was not related to the current case. ‘Do not bypass a sensitive matter,” he added.
CJP Bandial said that the present case is a completely different matter. CJP Bandial said that the “question in front of the court is simple one, can the ECP postpone the election date or not”? “We don’t want to stretch the matter”, the top judge remarked, adding “If the ECP has the authority [to extend the date] then the matter will be over”.
“If the political temperature stays so high, problems will increase,” CJP added. The Chief Justice of Pakistan remarked that the court was looking into the jurisdiction of the Election Commission of Pakistan to postpone elections. He said that the court would look into the matter to issue notices to political parties later.
He said that the bench would hear the arguments of PTI lawyer and attorney general. The CJP requested to keep the political atmosphere amicable. He remarked that the political atmosphere was extremely high. He said during yesterday’s hearing, he asked for political cooperation.
The CJP remarked that he did not want to delay this case. He said according to yesterday’s order, the court would hear arguments today on the jurisdiction of the ECP. He observed that rule of law and democracy were two faces of a coin.
CJP Bandial remarked that the SC was hearing this petition in good faith. The parties will have to decide where they want to take the situation, the top judge said, adding that the court would move forward keeping in the view the facts. The court wants rule and discipline in the country and nation.
CJP Bandial remarked that the law has empowered the President to announce the election date. He said that the SC’s March 1 decision was available in the court. He said that the President had already announced the elections date. The CJP continued that the court proceeding was not about giving poll date, rather it was about the rejection of date announced for polls. He remarked that democracy is a system, through which a government works.
The AGP contended that if the court decision was passed by 4-3, then there was no question to violate the order. He said if there was no order, the President could not have announced the date for polls. The CJP insisted that the case here was not about announcing the poll date, rather it was about deferring it. He remarked that elections are vital for democracy.
He chided the AGP ‘don’t try to entangle the matter on technical basis.’ He said that the SC March 1 order had been complied with. “Don’t raise this issue again in the court,” the CJP snubbed the attorney general, adding that the court was not hearing appeal against the high court order.
The attorney general of Pakistan requested the court to form a full court bench to hear the case. “It’s better if a full court bench hears this case” AGP Awan contended.
The government has urged the Supreme Court to constitute a full 13-member bench to hear the cases which hold significant national and public impact including the matter of elections.
Law Minister Azam Nazeer 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. He said in order to uphold the dignity of judiciary, a 13-member full court bench should be formed to remove the division and ambiguity in the institution.
Here, Justice Manokhail chipped in saying that the number of judges [who issued] the March 1 judgement was Supreme Court’s internal matter. He then asked whether holding elections within the stipulated time of 90 days was not a constitutional requirement. “Can the ECP delay the date for polls?” he inquired.
Lawyer Farooq H. Naek told the court that anarchy and fascism were prevailing in the country. “Constitution is a living document. Its interpretation can be made while keeping in view the ground realities. We have to determine what is good for the democracy and country in the current situation,” he added. He urged the court to listen to the stance of political parties as they are stakeholders.
Mandokhail inquired of Naek why this matter not raised in parliament. On this, the lawyer replied they were considering to raise this issue in parliament. CJP Bandial remarked that according respect to all state institutions was mandatory.
The PTI lawyer said in the court that every institution should work while remaining within its constitutional limits. The CJP told the PTI lawyer that the court expected the same attitude from his party as they brought the case to the court.
Chief Justice of Pakistan Bandial remarked that violence and intolerance have prevailed in the society. He lamented that people are so poor that they keep standing in long queues to get flour. He urged the political parties to avoid wangling and think about these poor people.
PTI lawyer Ali Zafar said this crisis will worsen if polls were delayed. Justice Amin inquired is it possible to reduce the election schedule from 90 days. Justice Ijaz-ul-Ahsan remarked that the ECP is empowered to adjust the schedule within 90 days. Apparently, the ECP cannot delay polls beyond 90 days, he added. Justice Mandokhail remarked that 90 days have already passed but no one cares about constitution in our country.
Justice Madokhail observed that election are going to be held in any case. But the question is, should the assemblies be dissolved on the whims of just one person?
PTI lawyer Ali Zafar said that the prime minister and chief minister are public representatives. Justice Mandokhail remarked if a prime minister’s own party wants to bring no-confidence against him then the assembly could be dissolved.
Coming back to the election issue, Justice Ahsan remarked that after the announcement of poll date by the President, the ECP issued the election schedule. He said the question is: Does the ECP have jurisdiction to change the poll date announced by the President? Can the ECP extend elections beyond 90 days?
Lawyer Ali Zafar said that the ECP acted upon the court decision as far as Punjab was concerned. CJP Bandial inquired if the ECP had jurisdiction to change the date. He said Section 58 of the Election Act does not allow to cancel polls. He said that in 2008, elections were also delayed.
Ali Zafar said that Article 220 binds all state institutions and governments to cooperate with the ECP. He said that the election commission decided to delay the poll after taking stance of the institutions. “You (court) should ask the ECP why it didn’t use its constitutional right. Every institution and every person are bound to act upon the constitution,” he added.
Justice Ahsan says if practically elections are not possible to hold in 90 days, the court can issue order.
Justice Mandokhail observed that the date which was announced for polls had already exceeded the 90 days limit. Ali Zafar said that if the court orders even today, then the elections are not possible in 90 days.
Justice Mandokhail remarked that the President too had given the date which had exceeded 90 days limit. He observed that Article 254 could be invoked after the completion of task, not before that.
Justice Ahsan remarked that if practically elections are not possible to hold in 90 days, then the court can issue an order.
Justice Munib Akhtar remarked if elections were not possible, then the ECP should resort to the court. The ECP could not issue order on its own. He observed if the ECP could defer polls for 6 months, it could also delay elections for two years.
Justice Mandokhail remarked that the constitution is silent on the issue as which authority could delay the polls. He said isn’t it appropriate that the parliament should make amendment to constitution.
During hearing, PTI lawyer Ali Zafar said that elections had never been deferred on the bases which have been used now to delay the polls. He said the commission said that it has not been given funds.
Justice Akhtar remarked that he read Prime Minister Shehbaz Sharif’s statement in a newspaper that government has collected Rs500 billion taxes till February. Can’t the government set aside Rs20 billion from Rs500 billion, the judge wondered, adding that it means that election will never be held due to paucity of funds.
On this, Chief Justice Bandial remarked that Rs20 billion could be generated by deducting our salaries. “The government can accumulate Rs20 billion by reducing expenditures. We have to make sacrifices to come out of the crisis. The fund for holding election can be generated by deducting 5% from salaries,” the CJP suggested.
The Chief Justice of Pakistan observed that the law enforcement agencies conducted most of the operations in the KP i.e. 1245. In Punjab, 61 operations were conducted, and in Sindh, 367 operations were carried out. Punjab’s situation is different from KP, the CJP said adding that in Turkey, elections are being held everywhere except the quake-hit areas.
Justice Ahsan said that the ECP used the authority which the commission was not empowered to use. He observed that the ECP could have gone even to the high court. After hearing PTI lawyer Ali Zafar’s arguments, the court announced a break in the hearing.
Ahead of today’s hearing, Pakistan Muslim League Nawaz (PML-N), Pakistan Peoples Party and Jamiat Ulema-e-Islam-Fazl (JUI-F) filed pleas in the SC to become respondents in the case. — DNA