Supreme Court election delay case: The proceedings and the aftermath

Pakistan is seeking a way out from the perfect storm after differences arose among political parties after the April 04 verdict of the Supreme Court of Pakistan over delaying polls in Punjab.

The country is passing through an unprecedented constitutional, political and economic crises.

A three-member bench of the apex court headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial declared the Election Commission of Pakistan’s (ECP) decision of holding polls in October as null and void and ordered the electoral body to hold polls on May 14 after holding week-long proceedings on the Pakistan Tehreek-e-Insaf’s (PTI) petition.

The ECP had postponed the date of the election in Punjab to October 8 — initially scheduled to take place on April 30 — citing a resurgence of terror attacks, a shortage of security personnel and an unprecedented economic crisis.

Khyber Pakhtunkhwa and Punjab assemblies, then controlled by former prime minister Imran Khan’s PTI, were dissolved on his instructions in January. Khan has been pushing for a fresh election in the provinces in addition to his demand for early national elections, both of which he views as a way for Pakistan to achieve political stability and help bolster its struggling economy.

The Supreme Court accepted the PTI plea and began hearing on the same day, March 27, it held six hearings for a period spanning over eight days, in which parties involved presented their arguments.

The Court Drama

Initially, a five-member bench was formed, comprising CJP Bandial, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Muneeb Akhtar, and Justice Ijazul Ahsan.

The hearings in the case witnessed high drama after two judges of the original five-member bench — Justices Jamal Khan Mandokhail and Aminuddin Khan — recused themselves from hearing the case.

On March 30, Justice Aminuddin Khan recused himself from the proceedings, citing a judgement from a three-member bench headed by Justice Qazi Faez Isa that halted proceedings under Article 184(3) of the Constitution.

Then, the bench was cut down to four members — CJP Bandial, Justice Mandokhail, Justice Akhtar, and Justice Ahsan.

A day later on March 31, Justice Mandokhail also recused himself and noted that since he was not consulted before the formation of the bench, he would like to withdraw himself from the bench.

Later a new bench was formed comprising CJP Bandial, Justice Akhtar, and Justice Ahsan to hear the case.

The three-member bench heard arguments from advocate generals of Punjab and KP, the attorney general for Pakistan, ECP’s lawyer, and secretaries of defence and finance.

PPP, PDM seek Full Court

As the hearing was going on, the Pakistan Peoples Party (PPP) and Pakistan Democratic Movement (PDM), sought the formation of a full court to hear the case. But the court rejected the request. The coalition parties expressed no confidence in the three-member bench hearing the case and maintained that it would not accept the decision.

Law Minister Azam Nazeer Tarar also said the government will not accept if the Supreme Court’s decision on a sensitive and important issue is announced in haste.

As the hearing was going on, parliament passed the Supreme Court (Practice and Procedure) Bill, 2023, to curtail the powers of the chief justice. President Arif Alvi sent back the bill to the parliament without signing it.

The government submitted a statement through Attorney General for Pakistan (AGP) Mansoor Awan, pleading for the formation of a full court to hear the case. It also sought the dismissal of the PTI petition in the light of what it interpreted as a “4-3” order issued by the apex court on March 1.

The apex court, had in a 3-2 verdict, ruled on March 1 that elections in Khyber Pakhtunkhwa and Punjab — both of which have been under caretaker governments since the provincial assemblies were dissolved in January — should be held within 90 days.

The government, however, had disputed with the court order, calling the verdict 4-3 instead after Justice Jamal Khan Mandokhail and Justice Syed Mansoor Ali Shah — who were among the four judges who had written additional notes in 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.

However, the CJP rejected the government’s request for a full court and instead suggested that a larger bench could be sought.

Court Proceedings

The court reserved the judgment after hearing all the parties, including the government, the PTI, the ECP and others. However, it did not hear the counsels of the coalition parties.

During the hearing, the secretaries of the finance and defence ministries briefed the court and submitted their respective reports.

At the outset of the hearing, Farooq Naek came to the rostrum. Justice Bandial asked the lawyer if PPP had ended its boycott against the court hearing to which the latter replied that he had not boycotted the proceedings.

“How can you boycott [the hearing] on one side and also attend the hearing on the other hand,” Justice Akhtar wondered.

“How will you present your arguments if you don’t have confidence in us?” the judge asked and then stated that the court would only hear Naek if he withdrew the statement — jointly issued by coalition leaders last week expressing no-confidence in the bench.

The CJP asked the PPP lawyer if he wanted to become a part of the proceedings, to which Naek replied in the affirmative and said that “we never boycotted the hearing”.

“But something else was written in the newspapers,” Justice Bandial said. Naek replied that his party had reservations on the maintainability of the petition.

However, the CJP insisted that Naek confirmed in writing that he had not boycotted the hearing.

AGP’s Arguments

AGP presenting his arguments highlighted 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. “But the KP governor never selected a date until the petition was filed,” he pointed out.

“The question is how can the ECP give the date of Oct 8 for polls,” the CJP said here. “The law gives no one the authority to delay elections. Only the court can delay the date for polls. “The order you are mentioning here [SC’s March 1 verdict] has already been executed,” Justice Bandial pointed out.

Justice Ahsan observed that the actual matter under consideration was the ECP’s decision to postpone elections, noting that the commission was bound to follow the court orders.

Here, AGP Awan recalled that during the first round of the hearings — the court’s suo motu proceedings on elections in Punjab and KP — 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 interjected and said that 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 February 27, a nine-member bench had forwarded the matter to the CJP for the reconstitution of the bench with Justice Ahsan adding that when the bench was reconstituted it consisted of five judges.

Meanwhile, the CJP clarified that he was not obligated to select the previous members and pointed out that the order the AGP was referring to was a minority judgement.

The AGP argued that an order of the court was not issued on March 1 to which Justice Bandial asked if Awan believed that a five-member bench was never constituted.

During the hearing, the CJP noted that harmony among judges was crucial for the Supreme Court. He observed that while judicial proceedings were made public, consultations among judges were considered internal matters.

Justice Akhtar stated that if the “logic behind the 4-3 verdict” were accepted, the matter would be referred to the same nine-member bench that was first constituted to hear the elections suo motu proceedings.

He added that the decision then would either be of the five-member bench or the nine-member bench.

Justice Bandial pointed out that the detailed dissenting notes of the judges did not include any points about the reconstitution of the bench.

Here, the AGP — while quoting the notes — stated that the bench’s reformation was an administrative move, and Justices Ahsan and Mazahar Ali Akbar Naqvi had distanced themselves from the suo motu hearing.

The CJP clarified that four judges had recused themselves from the bench, adding that it would have been more accurate to mention in the note that they were removed from the bench. Justice Bandial pointed out that the note did not specify which judges had voluntarily separated from the bench, adding that when a judge wanted to withdraw a bench, they had to submit a judicial note.

“There is no doubt in the fact that a judge can’t be thrown out of a bench,” he stated, adding that when the court ordered the reconstitution of a bench, it did not mean that other judges were being removed from the bench.

But the AGP argued that the opinion of the two judges — Justices Mandokhail and Shah — could not be separated. Justice Akhtar responded by citing Justice Afridi’s statement which stated that he had left his inclusion in the bench to the chief justice’s discretion.

Justice Akhtar also pointed out that the absence of the two judges was not brought up during the two-day suo motu hearing conducted by the five-member bench.

The CJP stated that a new bench was formed and the hearing began again. Additionally, it was noted in a footnote that the opinion of the two judges was not part of the decision record.

He further stated that the AGP had not succeeded in convincing the court to separate the judges who previously heard the case from the current bench.

Here, the AGP mentioned a circular issued by the SC registrar’s office in response to a judgement issued by Justice Qazi Faez Isa and Justice Khan on March 29.

In the 12-page order, the judges had called for the postponement of suo motu matters until amendments were made to Supreme Court Rules 1980 regarding the country’s top judge’s discretionary powers to form benches.

Subsequently, in a circular issued on March 30, the CJP disregarded the judgement stating that the “unilateral assumption of judicial power in such a manner” was a violation of rules.

Referring to the circular during the hearing today, AGP Awan argued that a judicial order or judgment could not be overruled by an administrative circular to which the CJP replied that the circular did not overrule any decisions. He said that the circular had instead issued administrative instructions for the judgement. Justice Bandial went on to mention another circular that halted proceedings for cases under Article 184(3) of the Constitution and clarified that the circular did not violate the decision of the five-member bench.

“There were no clear directives in the order issued by Justice Isa,” Justice Bandial added.

The AGP argued that rules regarding petitions were present in Article 184(3) of the Constitution and there was a five-member SC verdict available too on the mechanism of suo motu cases. At that, the CJP said: “In the verdict, it is written that it would be better to stop the hearing of cases on 184(3). In the March 29 verdict, there was no directive rather a wish was expressed. “Decisions on cases have to be taken in favour of the public, not by adjourning the hearing,” he stressed.

At one point during the hearing, AGP requested the court to adjourn the hearing until rules for petitions under Article 184(3) were finalised. Justice Ahsan inquired: “How can proceedings be postponed when rules for constitutional petitions already exist?”

AGP Awan said a court order could not be dismissed through a circular. At that, the CJP said that the court had always taken caution when it came to taking suo motu notice, recalling that the first such notice this year was taken when the SC received requests from the speakers of two assemblies.

The CJP disagreed with the argument that this case was different from other cases under Article 184(3) of the Constitution. He questioned how the court could stop action on cases whose rules had already been established and emphasised that the procedure for jurisdiction under Article 184(3) was very strict.

Justice Akhtar wondered over conflicting statements, as one side demanded a full court and the other side argued against holding a hearing at all. He asked the AGP to clarify whether a hearing could be held or not. He further commented that if the AGP’s argument was accepted, even a full court could not go ahead with proceedings.

The CJP pointed out that the judge who signed Justice Isa’s order had recused himself from the bench. He questioned how it was possible for Justice Isa, who authored the verdict, to hear the case.

The CJP suggested that the government could request the formation of a larger bench, not a full court. He also said that he met senior judges in the past three days.

Addressing AGP Awan, he said: “If you want to give arguments for [constituting] a larger bench, then go ahead.”

Subsequently, the AGP requested the court that a bench be constituted — for hearing the PTI petition — comprising judges who were not included in the nine-member bench in the suo motu proceedings. “Let the remaining two judges decide on the 3-2 and 4-3 verdicts,” he added.

As the hearing proceeded, the CJP remarked that one decision was given by a majority bench while the other was given by a minority bench comprising of two members.

He emphasised that the main purpose of the hearing was to ensure a fair trial, and stated that any decision taken without hearing all the concerned parties would have limited scope.

The CJP stressed that decisions made after a thorough hearing of the case were crucial, while Justice Ahsan noted that two benches had conducted separate proceedings in the case.

Finance, Defence Secretaries

During the hearing the CJP asked about the presence of the secretaries of finance and defence, to which the attorney general responded that the secretary of finance was present with a report.

The AGP told the court that the matter was sensitive and required an in-camera hearing to which the CJP directed Awan to submit the relevant files in court, saying that the bench would analyse them.

Justice Bandial remarked that the matter concerning security was not just limited to the army but also the navy and the air force, saying that when the armed forces were busy, help could be sought from the other two.

“The ECP says 50pc of the polling stations are safe. Every unit or office in the army is not for battle. The court has to do what can be done in an open court,” he said, noting that if “any sensitive thing comes forward”, the judges will hear it in the chamber.

The CJP also inquired about the exact number of security personnel required during the polls, to which Awan responded that everything was “on record” and that the ECP had given reasons for its decision.

The CJP told Defence Secretary Lt Gen (retd) Hamooduz Zaman: “We will not ask for sensitive information. Tell us the overall situation. Give us information about Punjab because there is no election date for KP.

“Are the security conditions in Punjab serious?” he asked the defence secretary, to which the latter said yes. “I cannot tell the details in an open court [as] we do not want the details to reach the enemy,” Gen Zaman said to which the CJP said that the report could be submitted in an envelope.

We will return the reports after analysing them, he stated, adding that if the court had a question, it would reach out to him for answers.

PTI Counsel’s arguments

The court invited PTI’s counsel Zafar to the rostrum and asked about his stance on an in-chambers hearing. The latter replied that the ECP had maintained that it would be ready to hold elections if adequate security was provided.

“But security personnel are available only for a day,” he highlighted, saying that the issue of security would hence stay the same. “The constitutional need is of 90 days.”

The PTI lawyer suggested that “services of retired people can be availed” to which the defence secretary replied that “reserved forces are present which can be called in specific circumstances”.

“The method to call the reserved forces is present [in the law],” Gen Zaman said but added that time was required to call the reserved forces and train them.

The CJP said that a large number of the forces were positioned at the borders and combat forces were not needed for election duty.

Subsequently, the finance secretary’s report was presented in court. “Is this report sensitive too?” Justice Ahsan asked to which the AGP replied that the report was in line with the government’s agreements with the International Monetary Fund (IMF).

“The IMF programme is important in its place,” the CJP said. “The current account and fiscal deficits must be reduced.” He also suggested that the deficits could be minimised by increasing revenues and cutting down on expenditures.

“Which development project costs less than Rs20 billion?” Justice Bandial inquired, pointing out that the petition stated that a fund amounting to Rs170bn was being given to the members (of the assembly).

Here, the additional finance secretary explained that the planning commission releases funds as per the Public Sector Development Programme (PDSP).

Talking about this fiscal year’s budget, he said that no cut was placed on the development funds. “New taxes were imposed to collect billions.”

Justice Akhtar here inquired about the increase in the percentage that could be witnessed in the budget by releasing Rs170bn. “Is it not possible to set aside Rs20bn out of a budget amounting to trillions?” he asked.

Justice Bandial highlighted that the government had faced a loss of Rs157bn due to petroleum products, asking what would have happened if the deficit had turned to Rs177bn.

The additional finance secretary replied that the deficit had been settled with the IMF.

“Can the salaries [of government officials] not be reduced?” the CJP asked. “Why don’t you start by reducing the salaries of the judges?” The chief justice clarified if there was a legal impediment, the court would end it, suggesting that a five per cent salary cut could be made in three phases. “The ECP would also be told to cut down their expenses,” CJP Bandial added. “Which financial expert will brief the court [on this]?”

Asad Umar

At one point during the hearing, PTI Secretary General Asad Umar took the rostrum and said that the government had spent Rs5700bn in the first five months of the fiscal year, adding that the total budget consisted of Rs9500bn.

“The IMF sets the loss target according to the GDP (gross domestic product) … Rs20bn are not more than 0.02pc [of the GDP],” he contended, adding that the loss target was 4.97pc of the GDP.

CJP Bandial then asked if expenses could be reduced from any sector to which the PTI leader replied: “Developmental expenses amount to Rs700bn and Rs450bn are yet to be spent.”

He went on to say that the government had only spent Rs200bn in eight months, adding that the government had included another Rs8bn in development funds. “How is it possible that Rs20bn can’t be taken out from a budget of Rs700bn? Is the constitutional requirement important or building roads? There is no bigger joke than this.”

“If such an example is set, elections would never be held due to financial constraints,” Justice Ahsan added.

ECP lawyer

After the security and finance reports were presented in court, ECP lawyer Qadir started presenting his arguments, assuring the court that he would be concise.

“How long will you present your arguments for?” the CJP asked here, to which Qadir said that he would try to finish his arguments within 30 minutes.

He started off by stating that when doubts arose about judges, they recused themselves from the hearing “On one side there is one party and on the other, there are the rest of the political parties.

“The perception of bias is coming from the bench,” he stated, saying that all the coalition parties had requested for a full court to hear the case but their plea was not accepted.

“Justice by the courts should be visible,” Qadir pressed, recalling that a decision of the court was already in dispute. “Right now, we can’t see justice being dispensed.”

He told the court that the decision to announce the election date should rest with the election commission. “There should be a discussion on whether the decision was 3-2 or 4-3.”

Qadir mentioned that four out of nine judges — in the election suo motu hearing — had dismissed the case and three judges had issued orders. He added that the March 1 verdict was a minority judgement and called on the SC to resolve the differences.

The ECP lawyer argued that the dispute over the judgment was not an internal matter. “The four judges who dismissed the plea should be included in this bench as well.

“The effect of a judicial order cannot be undermined by a circular,” he demanded, adding that was “imperative for the public to trust the judiciary”.

“The national interest falls in implementing the law and Constitution,” he highlighted, saying that elections within 90 days as mentioned in the Constitution was another matter.

The ECP lawyer further went on to shed light on how elections in the country were carried out at the same for years, emphasising that polls to all the assemblies should be held simultaneously. He told the court that doing so will also save money.

“It is mandatory to have a caretaker government during the National Assembly elections. The provincial assemblies were dissolved two months ago and not two years ago,” Qadir added.

Here, the AGP — while referring to Justice Isa’s judgement — said that for the betterment of the people, the hearing on all the cases pertaining to suo motu powers should be stopped.

He further said that the KP governor had issued a date for polls in the province and contended that the SC’s order regarding the president giving the date for elections was not as per the law. “The president cannot take any decision independently [regarding elections].

“The order given to him regarding giving a date for elections was unconstitutional,” he contended, adding that the president was bound by the cabinet’s advice in all matters.

“As per the Election Act, the president only has authority when it comes to the general elections,” the ECP lawyer said, adding that general elections will be held throughout the country at the same time.

He again reminded the court that Justice Isa’s decision had stopped the hearing of all the cases under Article 184(3) of the Constitution.

Irfan Qadir requested the top judge to solve the internal matters of the court. He also said that until the conflict on Article 184(3) of the Constitution was resolved, all suo motu hearings should be stopped. “Justice Qazi Faez Isa is a senior judge and his judgement cannot be ignored,” he added.

Here, the CJP revealed on matters highlighted above, all the judges would soon meet. “We will soon call a full court meeting would soon be called to make the rules,” he added.

The CJP remarked that one of the top court judges had recused themselves from the hearing in light of the order issued by Justice Isa.

Qadir, however, said that a three-member bench could not preside over the hearing after six judges had expressed their opinions. He pointed out that Justice Minullah had also questioned the move to dissolve the provincial assemblies.

PPP, PML-N lawyers disallowed

PPP’s Naek and PML-N lawyer Akram Sheikh requested the bench to grant them permission to present their arguments. However, the court maintained that they could not do so because they were representing the government. The judges noted that the coalition leaders had over the weekend expressed a lack of confidence over the bench and hence there was no point in presenting their stance in the court.

PTI lawyer Zafar highlighted that no one talked about the jurisdiction of the ECP during the hearing. The commission did not tell the court about the authority under which the polls were postponed.

Here, the CJP recalled that ECP’s Swati had talked about Section 58 of the Election Act, 2016. But Zafar contended that the Elections Act, 2016, could not supersede the Constitution.

Zafar recalled that ECP had referred to Article 218(3) of the Constitution, under which it was bound to hold polls. “But the ECP cannot take any decision that violates the Constitution.”

The CJP remarked that the Constitution was clear on who would give the date for elections. “Irfan Qadir has said that the president cannot act without consulting with the government … can the president give a date for polls without advice?”

Going on, Justice Bandial remarked that the courts were present for justice according to the law and Constitution, adding that “political agendas” were brought forth in political cases.

He expressed disappointment with the AGP, saying that Awan only presented arguments on the March 1 verdict. “Present your written arguments on this.”

Continuing with his argument, PTI’s Zafar said that the ECP could not change the date for the elections itself and could not act in violation of the Constitution.

The ECP has diverted the entire blame for not holding polls on the federal and provincial governments.

Here, the CJP remarked that there were certain situations in which the delay in elections was justified, but highlighted that the government had failed to present strong reasons for it.

“The court has to strike a balance,” Justice Bandial stated, noting that the government had failed to show the willingness to hold polls.

He further pointed out that the SC had presented an option before the government regarding negotiations with the opposition, but received no response on it.

The CJP added that the court respected the Parliament and the government, adding that political solutions were the way out of such crises.