In light of arguments made by the Elections Commission of Pakistan (ECP) regarding security threats in holding timely elections, Chief Justice of Pakistan (CJP) Umar Ata Bandial on Wednesday asked the ministries of interior and defence to provide the shortest span of time in which security situation would improve so polls could be held.
The chief justice made these remarks as a five-member bench — headed by himself and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Jamal Khan Mandokhail and Justice Aminuddin Khan — heard a case against ECP’s decision to postpone Punjab Assembly elections.
In a surprise move on March 22, the ECP had put off the elections — from the court-ordered April 30 to October 8 — 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, terming it “unconstitutional and illegal”.
At the previous hearing, Justice Bandial had observed that the ECP did not have any right or legal backing to extend the election date till Oct 8 and its order was written in haste.
PPP lawyer Farooq H Naek, Advocate Irfan Qadir, PTI lawyer Barrister Ali Zafar, ECP lawyer Sajeel Swati, Interior Minister Rana Sanaullah, Defence Minister Khawaja Asif and others attended the hearing today.
During the proceedings, the CJP asked the ECP to prepare a comprehensive plan for elections and present it in court tomorrow (Thursday). He also suggested that polls could be held on two days instead of one.
“The purpose of judicial proceedings is to keep the state functioning in accordance with the Constitution,” Justice Bandial remarked, emphasising that steps needed to be taken to move forward.
He also highlighted that the tension between political forces was affecting other state institutions and called for “cooling the political environment”.
Split in judges on election date ruling
As the hearing commenced today, PPP lawyer Farooq H. Naek appeared before the bench and requested that the party be named respondent in the case.
“You want to present your stance … is your application on behalf of the PDM (Pakistan Democratic Movement)?” the CJP asked. Naek replied that PPP was not a part of the PDM.
Justice Bandial then said that the court will first hear arguments from ECP’s lawyer.
On the other hand, Justice Mandokhail, while referring to the SC’s March 1 judgement regarding elections in Khyber Pakhtunkhwa (KP) and Punjab, said that four judges had “dismissed” the proceedings.
Last month, the CJP had taken a suo motu notice on elections in the two provinces and formed a nine-member bench. However, the bench was split into a five-member bench. The SC had also issued a written order, which was dictated in the open court on Feb 23 when Justice Mandokhail objected to the initiation of the proceedings under Article 184(3).
Signed by nine judges, the written order of the bench had stated that keeping in view the Feb 23 order, the additional notes attached by four judges, the CJP’s direction to add questions raised by Justice Shah, Justice Afridi, Justice Mandokhail and Justice Minallah, as well as discussions/deliberations made in the anteroom of the apex court, the matter was referred back to the top judge.
In response, the CJP reconstituted the bench comprising himself, Justice Shah, Justice Akhtar, Justice Mandokhail, and Justice Mazhar. Those who dissociated themselves from the hearing included Justice Ahsan, Justice Afridi, Justice Naqvi, and Justice Minallah.
On March 1, the SC, in a 3-2 verdict, directed the ECP to consult with President Arif Alvi for polls in Punjab and Governor Ghulam Ali for elections in KP. However, earlier this week, Justice Mandokhail and Justice Shah cast doubt on the judgement handed down in the March 1 suo motu, saying that the proceedings stood dismissed by a majority of 4-3.
During the hearing today, Justice Mandokhail stated that according to him the verdict of the four judges in the suo motu case was the ‘order of the court’. “The CJP has not issued an ‘order of the court’ to date.
“If an order has not been issued, how can the president give a date for elections? How can the ECP issue the election schedule?” he asked, noting that the four judges — who had issued dissenting notes in the suo motu case — “are my brothers”.
“I stand by the brief and detailed decisions I gave,” he added.
The judge also said that the decision on who will take a suo motu case was an “internal matter” of the court.
Here, the CJP noted that Justice Mandokhail had given his explanation but the latter interjected him, saying that he was still speaking.
Subsequently, Naek demanded that a full court be constituted to hear the case to which Justice Mandokhail said: “Why full court? The same seven-member bench should hear the case.”
However, the PPP lawyer contended that the current situation called for the formation of a full court. He also highlighted that clarification was needed regarding the SC’s March 1 verdict to which the chief justice told Naek to submit a written request in court.
Here, ECP counsel Sajeel Swati took the rostrum.
“Whose orders did the ECP implement?” Justice Mandokhail asked him. Swati replied that the commission had followed the March 1 verdict and had immediately reached out to the president, who chose April 30 as the date for polls in Punjab.
He went on to say that the commission had then issued a schedule for the elections and also started preparations accordingly.
At that, Justice Mandokhail asked if the ECP had read the brief order — given by Justice Shah and himself in the March 1 SC order.
“It is possible that there was some fault in their understanding,” Swati replied.
Separately, Justice Akhtar inquired if the brief order stated that the March 1 verdict was passed in a 4-3 majority, noting that the same wasn’t written “anywhere in the SC’s March 1 order”.
“It is the judge’s right to disagree,” he said, but contended that “this minority cannot under any law claim to be a majority”.
Justice Akhtar further stated that five judges had heard the case in open court and signed the decision.
But, Justice Mandokhail stressed that the brief order stated that dissenting notes had been written. “The dissenting note clearly states that justices Yahya Afridi and Athar Minallah agree with the decision.
“Did the decisions of Justice Yahya Afridi and Justice Athar Minallah evaporate?” Justice Mandokhail asked.
At this point, the chief justice interjected and said: “Let the matter of our chambers stay there.”
However, Justice Mandokhail asked what the position of the election commission was after the detailed decision. “No instructions were taken from the election commission on the 4-3 decision,” Swati replied.
Justice Akhtar remarked that “both judges are honourable, but a minority decision cannot prevail over a majority decision”.
“The law is clear that a minority decision holds no significance,” Justice Akhtar continued. “The decision of Justice Mansoor and Justice Jamal Khan is a minority one.”
The chief justice again instructed the ECP lawyer to continue presenting his arguments.
Presenting his arguments, the ECP lawyer said that that the commission made all-out efforts to conduct free and fair elections. “The ECP proposed the date for elections under Article 57.
“As soon as we received the verdict on March 3, the ECP began preparations for the elections. But we also have to look at the security of the people.”
Here, Justice Akhtar told the lawyer that ECP’s March 22 order — regarding the delay in polls in Punjab — had been challenged in court and asked him when exactly was the decision taken.
“The order was issued in the evening,” Swati replied, adding that nomination papers had already been issued when the decision was taken.
He further highlighted that the armed forces had refused to provide personnel for the election duty. “Article 17 of the Constitution talks about peaceful elections. According to the Constitution, the elections should be conducted in a transparent, peaceful and conducive environment,” he told the bench.
Swati revealed security agencies provided the ECP with “confidential reports” and offered to present them in court as well. “The reports mentioned that there was a presence of terrorist elements, such as the Tehreek-e-Taliban Pakistan and Sindhudesh, in Bhakkar and Mianwali.”
He went on to say that the ECP had requested more than 400,000 security personnel for polls duty, but was facing a shortage of 298,000 personnel.
Here, Justice Akhtar pointed out that the lawyer was detailing the letter dated Feb 8. “But the court issued the directives on March 1. Did you think of delaying elections till Oct in Feb only?
“And then you say you can’t even think of deviating from the court’s order,” the judge highlighted. “If you wanted to hold the elections in October, why did you suggest a date in April to the president?”
The CJP here instructed the ECP lawyer to note Justice Akhtar’s questions down. “Continue with your arguments and then give answers to these questions,” he said.
Continuing his arguments, the ECP lawyer said that in a letter on Feb 8, the Interior Ministry had raised concerns over the security situation in the country.
He said that the ministry had also warned of attacks on political personalities, including Imran Khan. “And these threats are not just for the election day but also during the electoral campaign.”
Swati reiterated that polls could not be held in the absence of security personnel.
“The sector commander of the ISI (Inter-Services Intelligence) said that banned organisations have formed shadow governments in KP,” he revealed. Detailing on the province’s security situation, he said 443 security threats were received in KP in 2023, while 80 incidents of terrorism were reported last year.
“According to reports, terrorists from Afghanistan are entering KP and it will take more than six to seven months for the threats to end,” the lawyer said.
At that, the CJP remarked that the points raised by ECP were very important and asked if they were conveyed to the president. He also observed that the reports of terrorism in KP were concerning.
“All the stakeholders were informed about the situation,” Swati said and highlighted that Punjab had also mentioned operations in various areas.
The CJP asked Swati whether he was aware that security operations in the riverine areas (of Punjab) take place every two to three days. “When will the riverine operation in Punjab be completed?” the chief justice asked him.
According to Punjab, Swati said, the operation will take up to six months to complete. “There is no room to doubt the reports of intelligence agencies,” the election commission lawyer said.
Justice Akhtar then interjected, stressing that two assemblies have been dissolved.
“But the facts mentioned in the intelligence reports cannot be overlooked,” Swati responded.
“Is there any way that the election commission could verify these reports?” Justice Mandokhail asked as the CJP conceded that terrorism was an issue.
“Facts are being reported in the media,” said Swati.
Justice Bandial, however, said: “The country has been facing the issue of terrorism for the past 20 years. Despite this, elections have been taking place in the country.
“Three elections were held in the 90s. During the 90s, sectarianism and terrorism were at their peak. The assembly was dissolved every three years under Article 58/2,” the CJP said.
Funds for elections
At one point during the hearing, Justice Akhtar remarked that the ECP’s order mentioned Rs20 billion but the court was given the figure of Rs25 billion — for holding the elections. “Rs5 billion have already been issued to the commission,” the lawyer replied, adding that the finance division had informed the ECP that funds for elections could not be issued during the current fiscal year.
“The finance secretary said that it was impossible to release Rs20 billion,” he said to which Justice Akhtar asked if the National Assembly had given the approval for the release of election funds.
“Only the Finance Ministry can give a detailed reply on the matter,” Swati replied.
The CJP remarked that elections will anyway be held in 2023 and inquired if a budget for elections had been kept in the annual budget.
The attorney general said that the budget for elections will be allotted in the upcoming fiscal year. “But we don’t know [what will happen] if the assembly is dissolved prematurely.”
The CJP then asked the total amount required if elections were to be held across the country at the same time to which the AGP replied that it would cost Rs47 billion.
“But if elections are held separately, Rs20 billion more will be spent,” he added.
Subsequently, Justice Akhtar asked if the ECP would be able to hold polls if it was provided support by the court. “Prima facie, ECP’s entire case is on letters … the commission’s problem is the lack of funds.”
CJP seeks assurance from PTI, government
The ECP lawyer said that if the commission was provided with the [required] funds and assistance from institutions, “we are ready to hold the elections in Punjab”.
Justice Akhtar pointed out that the ECP called itself a constitutional body and therefore holding elections was its duty. “But ECP issues a [election] schedule and [then] suddenly changes its decision.
“The election commission’s case falls under Article 218 [of the Constitution],” he remarked.
Swati assured the court that ECP was not aberrating from its constitutional responsibilities.
“So the ECP is ready for elections and needs assistance,” Justice Akhtar noted. “The incident of terrorism are concerning … every human life is precious … we pay tribute to security forces protecting the nation.
“However, the court also has to look at the Constitution,” he maintained.
Justice Akhtar inquired why the ECP didn’t consult with the court on the matter to which Swati replied that the commission simply followed the SC’s March 1 order.
Here, Justice Madokhail asked: “Where is the court order which was signed by all the judges? I am asking for it since morning but no court order is being brought forward.”
“As per our understanding, the order was issued by 3-2 majority,” ECP’s Swati said.
CJP Bandial observed that the court’s job was to ensure that the political system kept growing, remarking that the same was desired by political parties too.
He noted that the problem lay in the political temperature. “We had asked the PTI and the government to keep the political atmosphere cool. Elections cannot be held in the current political scenario.
“Neither Ali Zafar (PTI counsel) nor the attorney general responded about this,” he lamented, stressing that the court wanted assurance from both sides before proceeding with the case.
Barrister Ali Zafar said here that PTI was ready to give an assurance to the court. “We will submit a written assurance by the PTI chairman.”
CJP Bandial went on to say that elections could be delayed in distraction where the situation was not favourable. “But the ECP postponed elections in Punjab because of operations in the riverine areas,” he noted.
In KP, he continued, the date was first issued but later taken back. “The date of Oct 8 was already decided … what magic will take place on Oct 8?”
“The date of Oct 8 was given after an interim review,” ECP’s counsel said.
“Interim reviews mean elections will be delayed further,” Justice Bandial said, adding that the court wanted a concrete date.
For his part, Swati said that the date of Oct 8 was not temporary, elaborating that it was decided after intelligence agencies had assured the ECP that all the security measures would be taken by then.
“Intelligence reports say that the level of threats has increased and if elections are held in some areas, the focus of terrorism would only be in those areas then.
“It is the responsibility of the election commission to conduct elections with integrity and holding peaceful and transparent elections is the responsibility of the ECP,” he added.
ECP can change election programme, not date: Justice Ahsan
Justice Akhtar asked if the ECP was “running away” from its constitutional responsibility.
But Swati claimed that the ECP had the right to extend the date of the election through the poll programme.
Here, Justice Ahsan interjected and highlighted that the election programme and poll date were two separate matters. “Tell us the law under which the [election] date given by the governor or president can be changed?”
The lawyer responded that the “ECP can issue any orders for the conduct of fair and transparent elections”.
Justice Akhtar again said that the ECP could not run away from its job and could have approached the court if it was facing difficulties in holding polls. “The election schedule was already issued … then why were the polls postponed by six months?” he demanded.
“Is this how the ECP is fulfilling its responsibilities? Is a six-month delay in elections not a violation of the Constitution?” the judge inquired.
Justice Mandokhail noted: “From what day does the authority to hold the elections start? It begins after the date for elections is fixed.”
For his part, the ECP lawyer insisted that the commission had the authority to change the date for polls once it was fixed, elaborating that the electoral body didn’t just extend the date but also the entire elections schedule.
He further said that the ECP could withdraw the election programme for valid reasons.
However, Justice Ahsan observed: “The ECP only has the authority to change the election programme and not the date. How can the ECP change the date given by the president and governor?
“The Constitution is clear about who will give the date for polls. Can Section 58 of the Election Act, 2016, supersede the Constitution?” the judge inquired.
CJP Bandial noted that the ECP should have approached the SC for extending the date for elections. “You now convince the court [on the matter]. Is Oct 8 a magical date on which everything will turn out to be fine? Why not Aug 8 or Sep 8?”
Swati replied that Oct 8 fell on the first Sunday after the completion of six months.
Justice Mandokhail asked here if the date for elections was a part of the election schedule to which the ECP lawyer replied in affirmative.
Justice Khan, however, noted that the election date suggested to the president did not correspond to the date given by the commission. “Why was the president not informed about the meetings held in Feb?
“When you knew that elections could not be held on April 30, why did you suggest the date in the first place? What is the use of following the election schedule when you are standing in the court again today?” he inquired.
Swati responded that the sensitivity of the matter was assessed in March, arguing that examining the situation was the job of the election commission, not the president.
Here, Justice Akhtar highlighted that Section 58 did not allow the ECP to extend the date.
Justice Mandokhail observed that the ECP only had to defend its order. “The petitioner has to prove whether the court order [of March 1] was violated or not,” he noted.
Meanwhile, CJP Bandial pointed out that the ECP did not issue the new schedule after annulling the previous one. “Instead of the election schedule, the commission flagged Oct 8 as the date for elections.”
“Do you want the court to put a stamp on the date of October 8,” Justice Bandial asked and then remarked that the Constitution had been interpreted keeping the fundamental rights in view.
“How can Article 218(3) override Article 224?” he asked.
Article 218(3) of the Constitution talks about the ECP’s responsibility to organise and conduct elections and make necessary arrangements accordingly, while Article 224 details the time of elections.
Swati replied that Article 218(3) talked about transparent and fair elections to which Justice Bandial asked: “What will happen if transparent elections are not held?”
“Democracy can’t function without transparent polls,” the lawyer replied.
“What is the meaning of a conducive environment? That no one points a finger at anyone?” the CJP inquired. “Petty fights take place in every country. The real issue is that weapons should not be used.
“If you don’t want small fights then create a system through which people can vote from their homes,” he said.
The CJP also brought up the demand for voting rights of overseas Pakistanis, lamenting that the ECP had not yet done anything about it.
“Let’s ask the government if the period of six months can be reduced on that,” he added.
‘KP governor committing constitutional violation by not giving election date’
When the advocate general of KP took the rostrum, he said that the governor had not yet given a date for elections and offered assistance to the ECP.
Justice Akhtar asked if the KP governor announced the date for elections in the province and why did the caretaker government not push the governor to give a date.
Here, senior lawyer Kamran Murtaza said that the ECP was informed about the date which was set for May 28.
ECP’s director-general for law, however, interjected here that the governor had suggested Oct 8 for the polls and his letter regarding the matter was also sent to the commission.
“The court had directed the immediate announcement of the election date … on what basis did the government give the Oct 8 date?” Justice Akhtar asked. “After the dissolution of the assembly, elections should be held within 90 days, which will be completed by April 30.”
At that, Murtaza said that he will answer all the questions in court tomorrow after talking to the governor.
However, Justice Akhtar noted that the court had earlier clarified that the governor was committing a constitutional violation by not giving the date for elections.
The CJP then asked about the position of the caretaker government in Punjab to which the province’s advocate general said that it was the ECP’s duty to conduct the polls.
He also contended that if elections were held in Punjab first, the National Assembly polls would be affected.
At that, Justice Akhtar raised concerns regarding how could a caretaker government extend its term. “How can a caretaker government raise such a point?”
Meanwhile, the CJP, while referring to the by-polls on 20 Punjab Assembly seats held last year, asked about the number of incidents that took place during the polling that affected the exercise.
“I will review the record and inform the court tomorrow,” ECP (law) DG Arshad Khan replied.
The CJP also maintained that it was important to have an interim government during the general elections and that the Constitution said the same.
Justice Mandokhail asked if the Punjab government, to its extent, could support the ECP to which the Punjab advocate general replied that the province’s police officers were busy and therefore the deployment of armed forces was sought.
The hearing was subsequently adjourned.
Govt moves to clip wings of top judge
As the matter of elections in SC inch towards a conclusion, the federal cabinet on Tuesday approved a bill to deprive the office of the CJP of powers to take suo motu notice in an individual capacity.
The bill, called the “Supreme Court (Practice and Procedure) Act, 2023”, was approved by Prime Minister Shehbaz Sharif in a federal cabinet meeting and was subsequently tabled in the National Assembly.
It is expected that the standing committee will pass the bill in its meeting scheduled for today.
The bill proposes a committee of three judges headed by the chief justice which will be empowered to take suo motu notice as opposed to the earlier practice, which allowed the CJP to initiate proceedings under Article 184(3) in an individual capacity.
According to the proposed law, every cause, appeal, or matter before the Supreme Court shall be heard and disposed of by a bench constituted by the committee comprising the CJP and two senior-most judges in order of seniority. It added that the decisions of the committee shall be by majority.
In the bill, the right of appeal is being given to the accused party for the first time, which will be allowed to file an intra-court appeal within 30 days from the date of suo motu notice.
For filing a review application under Article 188 of the Constitution, a party shall have the right to appoint counsel of its choice, as per the proposed legislation.
Full court bench
Separately, a resolution was also passed in the NA yesterday asking the top court to “refrain from interfering in political and administrative affairs” and calling for the formation of a full SC bench to hear constitutional matters.
Through the resolution, read out by Information Minister Marriyum Aurangzeb in the rare presence of Prime Minister Shehbaz Sharif, the lower house of parliament called for “non-interference” in the matters related to the Election Commission of Pakistan (ECP), besides demanding same-day elections in the country under impartial caretaker set-up in line with Article 224 of the Constitution.
“This house believes that an unnecessary intrusion of the judiciary in the political matters is the main cause of political instability,” said the resolution, adding, “The House endorses the decision of four judges of the apex court in the suo motu case relating to holding elections and supports their opinion, hoping that the SC would refrain from meddling into the political and administrative matters of the country.”
It further said: “No infringement to be made to the constitutional rights of the ECP and the Commission should be allowed to hold elections as per its prerogative under favourable conditions.”
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.
In its March 1 verdict, the Supreme Court ordered to hold the election to the Punjab Assembly within 90 days and that the date be announced by the president. It also directed the authorities to provide funds and security personnel to ECP for the elections, the petition recalled.
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.