• Justice Bandial terms ECP decision to postpone elections a ‘hasty’ move, without ‘legal authority’
• Justice Mandokhail calls controversy over suo motu ruling an ‘internal matter’

ISLAMABAD: In light of claims made by the government regarding financial difficulties to hold timely elections, Chief Justice of Pakistan (CJP) Umar Ata Bandial on Tuesday proposed the salaried class, including judges, could take a five per cent pay cut to fund the polls.

The chief justice made these remarks as a five-member bench was hearing a case against the Election Commission of Pakistan (ECP) notification dated March 22, which postponed Punjab Assembly elections, for being unconstitutional and illegal.

During the hearing, the newly-appointed attorney general for Pakistan, Mansoor Usman Awan, argued that the International Monetary Fund did not set any conditions regarding elections, but the global lender required an additional collection of Rs170 billion during the last four months of the current fiscal year.

“In view of the existing shortfall, we have to raise additional taxes and keep the inflation down,” AGP Awan said. Justice Munib Akhtar observed that the requirement of Rs20 billion for holding the elections in Punjab was not even a “pocket change”. He added the court “understands the difficulty but has this difficulty risen to a situation that everything has become impossible”.

The government did not have money to hold separate elections in provinces but it has the money to conduct joint elections, the CJP observed.

Justice Bandial further obser­ved that the ECP did not have any right or legal backing to extend the election date till Oct 8 and asked the AGP to get instructions from the federal government in this regard.

‘Internal matter’

Justice Jamal Khan Mando­khail, one of the two judges who had cast aspersion on the March 1 judgement regarding elections in Khyber Pakhtunkhwa (KP) and Punjab, said the disagreement on the judgement was an internal matter of the judiciary.

“Forget about whether the March 1 judgement had rejected the suo motu judgement by a majority of four to three or three to two, it is our internal matter,” Justice Mandokhail said.

“Even if we set aside the ECP notification regarding the postponement of Punjab Assembly elections till Oct 8, the real question remains which authority the ECP should approach [for elections date],” he said, regretting that no one wanted to stick to the Constitution.

Justice Mandokhail also reminded that even the date — April 30 — announced by the president for holding elections in Punjab jumped the 90-day stipulated period enshrined in the Constitution.

Justice Bandial was quick to appreciate the remarks made by the judge and observed that Justice Mandokhel had “bluntly cleared the situation for which he was thankful”. “Yes, two judges have passed an order but they have their own point of view besides it has no relevance with the present proceedings,” the CJP emphasised during proceedings that lasted for more than three hours with a maiden recess.

The observation came when AGP Awan argued that the power conferred upon the president to appoint the election date was made in pursuance of the March 1 judgement and if “we considered that order to be by the majority of four to three, then it means there was no decision of the court and therefore the worthy president could not have given the poll date”.

He also reminded that the view taken by Lahore High Court in a similar petition in the first round was different and it did not confer any power to the president and also requested that it would be better if the “wisdom of the entire elected court decides the present controversy”.

The CJP, however, explained that “we were not sitting on an appeal of the high court” and added that the AGP was relying on a technical point since the March 1 judgement had already been implemented by the president announcing the poll date. “The March 22 notification of ECP of delaying the Punjab assembly was written in haste,” the CJP observed and suggested to the political leadership to show maturity and sit together for a dialogue. “If you have a grievance then file proper proceedings,” CJ Bandial observed.

Security situation

When the AGP highlighted the internal security situation, Justice Akhtar asked that should “we remain hostage to terrorists as a nation”. He said every soldier who embraced martyrdom “was the son or daughter of the nation and this was an ultimate sacrifice they have given to the nation. This is how a nation grows”.

Moreover, the security forces functioned under the command of the federal government and when summoned they were bound to provide security.

At the outset, Senator Farooq H Naek requested to hear the point of view of the political parties as was done during the March 1 hearing. The CJP observed that democracy requires harmony so that the democratic system gets flourished. “The rule of law is the other side of the coin and if democracy cannot function then it would result in chaos,” he said, adding that in case of hostilities, democracy becomes dysfunctional. “Therefore there should be some semblance of tranquillity and calmness in the society,” he stressed.

Farooq Naek responded that the present petition will determine the fate of the political parties since the ruling coalition partners were also representatives of the people. “There is a grave constitutional crisis and there is fascism and anarchy prevalent in the country,” the counsel contended. He added the political parties which were the paramount stakeholders in the present situation should also be heard in the matter. Why you don’t go to parliament, Justice Mandokhel asked. Farooq Naek retorted, “We were contemplating doing so.”

While pointing towards Barrister Syed Ali Zafar who was representing the Pakistan Tehreek-i-Insaf (PTI), Justice Bandial observed that the court wanted support from higher leadership of the former ruling party since there was violence in the society and no one seemed to be ready for the dialogue.

It is likely that the Supreme Court may conclude the hearing on Wednesday and come up with a final judgement.

Published in Dawn, March 29th, 2023

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