SC rejects AGP’s request for full court in election delay case

Published March 31, 2023
The combination photo shows (L-R) CJP Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Aminuddin Khan and Justice Jamal Khan Mandokhail. —SC/website
The combination photo shows (L-R) CJP Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Aminuddin Khan and Justice Jamal Khan Mandokhail. —SC/website

A diminished Supreme Court bench — comprising three judges — on Friday rejected Attorney General for Pakistan (AGP) Mansoor Awan’s request for the formation of a full court to hear PTI’s petition against the Election Commission of Pakistan’s decision to postpone elections to the Punjab Assembly till Oct 8.

Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar heard the case after the original five-member bench constituted for the matter was disbanded following the recusals of Justice Aminuddin Khan and Justice Jamal Khan Mandokhail.

The original bench included:

  1. Chief Justice of Pakistan (CJP) Umar Ata Bandial
  2. Justice Ijazul Ahsan
  3. Justice Munib Akhtar
  4. Justice Jamal Khan Mandokhail
  5. Justice Aminuddin Khan

The recusal of Justice Mandokhail, which came a day after Justice Khan, took the apex court by surprise today and fuelled calls from government figures to constitute a full court to hear the case.

However, it was CJP Bandial, Justice Ahsan and Justice Akhtar who conducted the proceedings.


Key developments:

  • After Justice Khan, Justice Mandokhail recuses himself from bench hearing PTI petition on delay in elections in Punjab
  • Three-member bench comprising CJP Bandial, Justice Ahsan and Justice Akhtar hear the case
  • Court rejects government’s request for full court
  • Justice Bandial urges PTI and government to hold dialogue and negotiate
  • CJP says SC judges being targeted based on hearsay
  • AGP says Pakistan running a deficit of Rs1,500 billion and interest rate expected to rise
  • SC summons secretaries of finance and defence to court; hearing adjourned till April 3

During the hearing, when the AGP requested the formation of a full court, Justice Bandial remarked that the court had conducted proceedings into the case for three complete days and that the inclusion of new judges to the bench will further waste time.

“It will take time for the new judges to understand the case,” he observed, adding that Article 184(3) of the Supreme Court Rules 1980 was clear on the matter.

Justice Akhtar also said that it was everyone’s right to request a full court but the government giving the impression that benches were formed on “favouritism” was a serious accusation. “The Supreme Court has said that the CJP is the master of making benches,” he added.

‘Monday’s sun will bring good news’

As the proceeding commenced today, the chairman of the executive committee of the Pakistan Bar Council (PBC) appeared before the bench. However, the CJP said that the court will hear his arguments later.

“The bar has nothing to do with supporting anyone,” PBC’s Hasan Raza Pasha stated. “If not a full court bench, you can call a full court meeting.”

The CJP responded that he was pondering over it and went on to say that the SC judges shared good relations.

“Two judges recused themselves from the hearing today and yesterday,” he said, revealing that polite conversations took place between the judges both before the recusals and afterwards.

“We also talked about some reservations. Some political issues came up which were fuelled by the media and press conferences, but the court showed restraint throughout the matter.”

Justice Bandial noted that different SC judges were being criticised by different people and added that he was looking into the matter. “Meet me in my chamber on this matter,” he told Pasha.

The CJP further stated that Pasha had appeared in court for the first time today and told him to prove himself through his actions and not words. “I have been in contact with the president of the Supreme Court Bar Association … we respect you, come to my chamber.”

Justice Bandial said that if the matter was only related to “external image” then “our lives would have been peaceful”.

“Media persons sometimes say wrong things but the court always shows restraint,” the CJP remarked, adding that he would hold some meetings after the hearing. “Monday’s sun will rise with good news.”

CJP suggests dialogue between government, PTI

Subsequently, the top court judge asked AGP Awan to present his arguments.

As he began, the AGP first requested the court to reduce the temperature within it, stressing that everywhere in the country, the [political] temperature needed to be brought down.

“What did you do to reduce the friction?” the CJP asked here to which Awan replied that the temperature would only cool down with time.

“The court has always given precedence to the Constitution,” Justice Bandial asserted, recalling that judges in the past were taken out of their offices and jailed in their houses. “It is a miracle that they returned to the office, but some of the best judges in the 1990s could not come back,” he added.

“Constitution is very important for us; for this nation; for this society; it holds the federation together; it keeps alive democracy; today when you go to Parliament you find people addressing the Parliament who were till yesterday in captivity, imprisoned, declared traitors; they are now talking over there, and being respected; because they are representatives of the people,” the CJP was quoted as saying in a press release issued by the Supreme Court.

“An assembly has a tenure and the head of the house has the right to dissolve it,” he said highlighting that the 90-day stipulated time for announcing elections was coming to a close in April.

The Punjab Assembly was dissolved on Jan 14. After back and forth with the ECP, President Arif Alvi had selected April 30 for polls in the province.

During the hearing today, the CJP noted that the date for the election suggested by the president was already beyond the 90-day time period. “The president was not briefed about the situation by the ECP.

“If they had done it, the president would not have given the date for April 30,” he said, pointing out that the matter in front of the court was of Oct 8.

“The court is not sitting here to increase problems. Either give us concrete reasons or commence a dialogue. One respondent [the PTI] is already giving the guarantee of its chairman. The government too will have to move on.”

The CJP further said that the tenure of the assemblies would be completed in August. “We can take a break for a few days if the government and opposition want to hold negotiations. If the negotiations don’t work out, we fulfil our constitutional role.”

But first, he continued, tell the court about the Rs20 billion expenditure on the elections. The CJP also recalled that he had suggested a cutback on government expenditures earlier.

The CJP then highlighted the issue of terrorism in the country, saying that half of the polling stations were either sensitive or highly sensitive. “Only saying that there is terrorism in the country is not enough. Terrorism has been around since the 90s.

“The court was told that the armed forces are busy at the border. This matter has to be looked at as well,” he said.

‘SC judges being targeted based on hearsay’

At one point during the hearing, the AGP said that he had read Justice Mandokhail’s dissenting note in yesterday’s court order, elaborating that the judge recused himself from the bench.

Other points raised are related to the March 1 verdict, he continued, referring to the SC’s suo motu proceedings on elections in Punjab and Khyber Pakhtunkhwa.

AGP Awan further emphasised that even the PTI petition being heard in court today was based on the March 1 verdict and recalled that during the suo motu proceeding, “two members of the nine-member bench had distanced themselves from the bench”.

To this, CJP Bandial asked: “Who told you that two judges had recused themselves? Read the court order of Feb 27; where is it written so in the order?”

At that, the AGP read out loud the court’s Feb 27 order. When he finished, Justice Bandial highlighted that the court order said the matter was sent to the CJP for an afresh reconstitution of the bench. “If I wanted to, I could have even changed all the judges [in the bench].”

The country’s top judge further stated that the internal conversations of the judges should not be brought out into the public. “We will soon resolve all these issues.”

For his part, the AGP said that the government had requested to form a full court from the first day of the hearing.

“Present your arguments on this point,” the chief justice said. “This matter was also in my mind.” He explained that the courts had a lot to consider while forming benches, one of which was that the formation of benches should not affect day-to-day cases.

“In the present day, the number of cases that are heard daily has increased. Oftentimes, all the judges are not available. Last week, a bench was in Karachi and Quetta. There is a bench in Lahore too this week.”

Referring to the suo motu proceedings on elections in KP and Punjab, the CJP said that while forming a nine-member bench he thought about all the judges.

“I have found Justice Athar Minallah compatible with the Constitution. Justice Mansoor Ali Shah, Justice Yahya Afridi, and Justice Munib Akhtar are constitutional experts. Justice Ahsan is also a constitutional expert.

“You can ask why Justice Mazahar Ali Akbar Naqvi was included in the bench,” Justice Bandial pointed out and then went on to say that reason for it was to “give a silent message”.

Justice Naqvi’s inclusion to the nine-member bench hearing the election suo motu case was opposed by the government after an audio clip surfaced on social media, allegedly featuring his voice.

During the hearing today, Justice Bandial highlighted that SC judges were being “targeted” because of ongoing political issues.

“All judges are being made a target based on hearsay,” he asserted. “The Supreme Court was always united, and in some ways, it still is.”

The top judge also expressed that no one could see how the judiciary was being affected and the way people “sitting on important positions are targeting the judiciary”.

“I am being told to punish another judge … first go and review the evidence.”

He went on to say that the SC had the best judges in the last 20 years and appreciated the judgements authored by Justice Shahid Waheed and Justice Ayesha Malik.

“If you talk based on law, I will listen to it as a judge, but if you attack my judges, you will have to face me,” a visibly emotional CJP added.

Security and funds for elections

For his part, ECP lawyer Irfan Qadir said that the electoral body’s complete stance had not been heard by the court yet. However, the CJP said that AGP Awan will first present his arguments.

Subsequently, Qadir complained that he had been waiting in the court for hours and just needed three minutes to talk. “If you can get emotional, we can get emotional too,” he added.

But the CJP told the AGP to continue with his arguments. “The government has to give security and money for the elections,” he highlighted to which Awan said that he would brief the court about the finances.

Here, Justice Ahsan clarified that the AGP had to assist the court legally, while Justice Bandial said that the court would give a chance to all the respondents.

The AGP then highlighted that the government was facing a deficit of Rs1,500bn and the interest rate had increased by 13 per cent, which he said was increasing the government’s debt.

“Will the government go bankrupt by issuing Rs20bn [for elections],” Justice Ahsan asked rhetorically.

“Attorney general sahib, talk about security and funds,” the CJP said to which AGP Awan replied that the court should first listen to the political parties.

“I will inform the court on financial matters after that.”

At that, the CJP said: “We will also listen to Farooq H. Naek, Akram Sheikh and Kamran Murtaza. But first, we want to listen to the State of Pakistan.”

Meanwhile, Justice Akhtar asked the AGP to simply tell if the elections could be postponed till Oct 8. “How much money does the government have right now? How much money is available in the federal consolidated funds?

“If Rs20bn are spent, how much of the Rs1,500bn deficit will increase?” Justice Akhtar asked and then noted that the elections expenses were less than 1pc of the deficit.

In his response, the AGP said Rs170bn was expected in the supplementary budget.

“Whose control are the federal consolidated funds in?” Justice Akhtar inquired to which Awan replied that they were in the hands of the finance ministry.

“Read out the 2019 rules and tell us who controls the funds,” the judge directed, highlighting that as per the Public Financial Management Act, the consolidated funds were deposited in the State Bank of Pakistan (SBP). “We can call the SBP and ask them how much money they have.

“The ECP is looking at the government … it says that if funds are provided elections can be held on April 30,” he added.

Here, the CJP pointed out that having money in funds and having it available for spending were two different things. “The SBP has to keep money and gold reserves,” he added.

The court then summoned the secretaries of finance and defence to court and adjourned the hearing till Monday (April 3).

Recusals of Justices Mandokhail, Khan

Justice Mandokhail’s recusal today came a day after Justice Aminuddin Khan withdrew himself from the bench saying that he was a signatory to an order issued by a different bench, proposing the postponement of all cases instituted under Article 184(3) of the Constitution.

“In view of the case No 4 of 2022 (awarding of 20 additional marks in MBBS or BDS degrees to candidates for memorising the Holy Quran), which is still in the field but the present bench is proceeding with the case (postponement of Punjab elections), therefore I recuse myself of the case,” he had observed.

Subsequently, on Friday morning, a new bench was formed which retained the four judges, excluding Justice Khan.

However, as soon as the proceeding began, Justice Mandokhail announced his withdrawal from the bench.

“Justice Aminuddin Khan recused himself from the bench after which we were waiting for the court order,” he said. “I received the order at home yesterday.”

Justice Mandokhail then asked the attorney general to read out the order in court which he did.

The order, a copy of which is available with Dawn.com, noted that Justice Khan had recused himself from the bench but the CJP, Justice Akhtar and Justice Ahsan “respectfully disagree” and believed that the hearing in the case would remain “unaffected”. It ordered that the case be fixed before a bench that did not include Justice Khan.

The court order also included Justice Mandokhail’s dissenting note, which said: “The order was not dictated nor was I consulted by the HCJ [chief justice]. However, the impact of the judgement requires consideration in court.”

Referring to his dissent note in SC today, Justice Mandokhail said that despite being a member of the bench, he wasn’t consulted regarding the formation of the new bench.

The judge remarked that he believed he was a “misfit” in the new bench, observing that “all the judges are bound by the Constitution”.

Full court hearing ‘the only way out’: Khawaja Asif

Reacting to the development, Defence Minister Khawaja Asif said that there was an urgent need for the judiciary to form a full-court bench to hear the Punjab poll delay case.

 The photo shows Defence Minister Khawaja Asif speaking outside the apex court on Friday. — DawnNewsTV
The photo shows Defence Minister Khawaja Asif speaking outside the apex court on Friday. — DawnNewsTV

Talking to media persons outside the SC today, Asif said that the erosion of people’s confidence [in the judiciary] was a significant issue that must be addressed. He reiterated the demand for the formation of a full court, a request that has been put forward by the coalition government from the beginning of the case.

Referring to the recusals of the judges, he expressed disappointment and concern, stating that the nation was observing the situation with “despondency”.

Asif acknowledged that people had high expectations from the judiciary, and the current turn of events was an unfortunate occurrence. He further remarked that while debates and disagreements were a natural part of the political culture, they were not a part of their [judicial] culture.

PTI 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 violated 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 would 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 despite 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.

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