Delay in polls: CJP says top court can’t force govt to hold negotiations

Published April 27, 2023
From left to right: Justice Ijazul Ahsan, Chief Justice of Pakistan Umar Ata Bandial and Justice Munib Akhtar. — Supreme Court website/File photos
From left to right: Justice Ijazul Ahsan, Chief Justice of Pakistan Umar Ata Bandial and Justice Munib Akhtar. — Supreme Court website/File photos

Chief Justice of Pakistan (CJP) Umar Ata Bandial said on Thursday that the Supreme Court could not force the government to hold negotiations with the opposition.

He passed these remarks as a three-member SC bench, headed by the CJP and comprising Justices Ijazul Ahsan and Munib Akhtar, took up the elections delay case. However, the hearing was adjourned barely an hour after it started with the CJP saying that a detailed order would be issued later.

At the previous hearing, the court had asked political parties to hold talks on April 26 and come up with a response by today after giving stakeholders a chance to reach an agreement. Political parties had been asked to decide the matter quickly, since the May 14 date for elections was still in the field and the order was binding on all authorities.

However, no talks were held and the government also refused to comply with the April 4 directive.

A day earlier, National Assembly Speaker Raja Pervaiz Ashraf, on demand of the lawmakers, wrote a letter to the CJP saying that “it is best to leave the resolution of political matters by the parliament and the political parties”.

During the hearing today, the court raised questions over the government’s “seriousness” regarding holding negotiations. “What steps has the government taken to show its good will? It seems like the government is playing pass-pass,” Justice Bandial said.

He also remarked that politicians should themselves find solutions to the problems, adding that “the Constitution and our order [on polls] is present” if the differences were not sorted out via talks.

The hearing

Ahead of the proceedings, a number of politicians and lawyers including PTI’s Shah Mahmood Qureshi, Law Minister Azam Nazir Tarar, JUI-F’s Mian Aslam Iqbal and Attorney General for Pakistan (AGP) Mansoor Usman Awan were present.

At the outset of the hearing, AGP Awan informed the court that the first contact between the government and the opposition took place on April 19 and it was decided that a meeting will be held on April 26.

He elaborated that PML-N’s Ayaz Sadiq and Khawaja Saad Rafique met PTI’s Asad Qaiser on April 25, however, the latter said he was not authorised to decide on the matter of talks.

Here, the CJP asked: “After Asad Qaiser’s refusal, was an attempt made to find out who is authorised for the talks?”

The AGP replied that despite differences, the government and PTI had differences found a way forward and apprised the court about a committee formed by Senate Chairman Sadiq Sanjarani for political dialogue.

“The Senate chairman has asked both the government and opposition to nominate four names each [for the talks],” Awan said, adding that he had found out from the media that PTI’s Qureshi was authorised for the negotiations.

“In what capacity was the Chairman Senate contacted?” Justice Bandial asked, noting that Sanjarani was neither the representative of the government nor the opposition. “If the government was serious about negotiations, it would have made efforts itself.

“The court can’t force the government to hold negotiations,” the top judge remarked, stressing that the court only wanted implementation of the Constitution so that a way could be found out of the current crisis.

“We don’t need any explanations, give us a solution,” he said, highlighting that it would take Sanjarani’s committee time to initiate the talks.

At that, PPP lawyer Farooq H. Naek said that all the coalition parties had agreed on holding talks with the PTI and Senate was the only forum where all the political parties were present.

He further stated that the Senate chairman was playing the role of a facilitator and negotiations would only be held by the political parties. “This is a political issue and will only be solved by political leaders … only politicians should be allowed to decide the future of politics,” Naek added.

Here, the bench called Qureshi to the rostrum. The PTI leader recalled that the court had provided the political leaders with a chance for consensus during the previous hearing.

“But the Pakistan Democratic Movement has still not reached a consensus regarding the talks,” he claimed, highlighting that the PTI had taken the court’s order seriously.

Qureshi revealed that no one had reached out to the PTI as yet. “Imran Khan had named me, Fawad Chaudhry and Ali Zafar for the talks,” he said. “But to date, no one has approached me.”

The PTI leader went on to say that the Senate chairman called him yesterday regarding the committee for political dialogue. “I asked him where the advisory given by the SC was … the Senate committee is just a delaying tactic.”

On yesterday’s NA session, Qureshi said that it was a violation of the parliament’s rules, emphasising that a matter that was being discussed in the court could not be dragged into the parliament.

“I felt ashamed at hearing threatening language and tone in the parliament … it was said that contempt of parliament has taken place,” he regretted.

At one point during the hearing, the former foreign minister also said that if the government was “serious”, PTI was ready for negotiations “right now”. But at the same time, he claimed that the government had decided to violate the Constitution and the court orders.

In rhetoric to Qureshi, Naek questioned who was looking down on the parliament and the court. “We can’t agree with what Shah Mahmood Qureshi said.

“Give your names to the PTI. We are ready to sit for talks tomorrow,” he added.

At that, the CJP said that one had to be patient when it came to negotiations. “The court never passed an order [for talks], it is just advice. It will be business as usual if a consensus, for the protection of national interest and the Constitution, is not reached,” Justice Bandial added.

He asked what “is the science” behind providing names for talks and if the government had nominated five members from its side. To this, Naek replied that the government would finalise its names within three to four hours.

The top judge also expressed hope that talks between the PTI and government would be held today and suggested that PPP’s Naek was included in the negotiations “to keep the matter cool”. However, Qureshi pointed out that the Senate chairman had only asked for the nomination of senators.

Meanwhile, AGP Awan assured the court that efforts were being made to hold the first meeting, between the PTI and the government, today.

For his part, PTI’s Fawad Chaudhry said: “Neither the parliament nor the SC, only the Constitution is superior. On elections, the Constitution is clear and even the court can’t change that.”

He further said that political parties should not be given the authority to decide on a date for elections, arguing that “if this happens, no government will issue funds for polls”.

Subsequently, the CJP said that political matters should be solved only by talks and adjourned the hearing. He said that the court was not issuing any order or timeline and that a detailed verdict would be released later.

‘Govt can face contempt charges’

Law expert Barrister Asad Rahim termed the government’s inaction on the Supreme Court’s orders “a contemptuous performance” and said that the apex court was playing a role it was not obliged to.

Talking to Dawn News today, he said: “When the court order is so clear and state institutions — the majority parties in the parliament and the Election Commission of Pakistan — don’t follow it unanimously, then the court neither has an army nor any substantial financial resources [to hold polls].

“The court cannot do anything more if such a basic requirement of holding elections within 90 days is not fulfilled and such a contemptuous performance is seen,” Rahim stated.

The barrister further said that it was not the judiciary’s job to “tell the State Bank of Pakistan to release [election] funds” or “direct the political parties to sit together”.

Rahim asserted it would have been better if the “state and the government had moved forward while fulfilling the constitutional requirements” so that the country would not have to be stuck in a deadlock.

“But if the judicial proceedings keep on being frustrated in this manner, we (the government) would be included in the boundaries of contempt,” he cautioned.

When asked about the Supreme Court’s possible actions if a unanimously-agreed poll date could not be decided upon, Rahim reiterated the likelihood of the government facing contempt charges if it did not avail the chance of negotiation provided by the apex court.

“What the court said about finding a path ahead was also above and beyond because the requirement in the Constitution is of 90 days only. If you are not even taking that route, then the point that you arrive at after that is contempt only,” he said.

Ready to sit in parliament at 4pm today, says Qureshi

Talking to the media after the hearing concluded, Qureshi said that the PTI was prepared to sit in the parliament at 4pm today for negotiations. “We will be there only if the government is serious about the talks.”

 PTI leader Shah Mahmood Qureshi and Fawad Chaudhry talk to the media outside SC on Thursday. — DawnNewsTV
PTI leader Shah Mahmood Qureshi and Fawad Chaudhry talk to the media outside SC on Thursday. — DawnNewsTV

The PTI leader stated that his party had already put forward the details of its committee for dialogue and demanded that the government should do the same.

He said that the PTI feared the government would use the talks as a “delaying tactic”. “This is their way to run away from elections and therefore we want to see if they are serious about it,” Qureshi reiterated.

The former minister further said that CJP had given political parties a chance to sit together. “This is also a test for the political leadership on whether it is ready to work for the Constitution or destroy it. Do we want to repeat the history or do we want to start over?”

On the other hand, Fawad warned that the process of negotiations could not be prolonged.

“You have to take a decision within two to three days, otherwise elections will be held as per the Constitution [within 90 days],” he said, adding that if an outcome didn’t come out of talks, the law would take its course.

“The SC’s April 4 order already stands,” Fawad added.

Awami Muslim League (AML) chief Sheikh Rashid said that negotiations were “a waste of time”, claiming that the government was not in a position to conduct elections.

“Nothing will come out of these negotiations, the decision will only come from the SC,” he added.

Executive-judiciary impasse on elections

On April 4, a three-member bench, including CJP Bandial, directed the ECP to hold elections in Punjab on May 14 and instructed the government to issue funds for the purpose by April 10.

But the government has yet to release the funds and maintains that elections to the National Assembly and all provincial assemblies be held on the same day.

On April 10 — the initial deadline set by the top court for the release of funds — Finance Minister Ishaq Dar tabled a money bill in the NA, seeking funds for conducting polls in Punjab and KP. The bill, titled Charged Sums for General Election (Provincial Assemblies of the Punjab and the Khyber Pakhtunkhwa) Bill 2023, was subsequently rejected by the NA.

Prior to that, the government-dominated standing committees of both Houses of the parliament also rejected the bill in their separate meetings.

The matter was then again taken up by the apex court, which directed the State Bank of Pakistan (SBP) to provide funds to the ECP for Punjab and KP polls by April 17.

The court directed the SBP to release funds worth Rs21bn for elections from Account No I — a principal component of the Federal Cons­olidated Fund (FCF) worth Rs1.39 trillion — and send an “appropriate communication” to this effect to the finance ministry by April 17.

Following the top court’s orders, the central bank allocated the funds and sought the finance ministry’s nod to release the amount to the ECP. But, the government’s approval was required to release the amount from the FCF while the government had to get the National Assembly’s approval for its release.

Subsequently, on April 17, the coalition government managed through the NA yet another rejection of its own demand for the provision of Rs21bn as a supplementary grant to the ECP for holding polls in the two provinces — nullifying the SC’s third directive for the release of funds for the purpose.

A day later the SC, while hearing a defence ministry plea for same-day polls, warned the government of “serious consequences” if it failed to release the funds required for conducting polls in Punjab and KP. It had also said that since the office of the prime minister had primacy, the premier “must enjoy the confidence of the majority of the NA at all times.”

“It follows from the foregoing (and this is an important constitutional convention) that the government of the day must be able to secure the passage of all financial measures that it submits before the NA. This would be certainly true for a financial measure of constitutional importance,” the order said, adding that when viewed from this perspective, the NA’s rejection of the demand to release poll funds held “serious constitutional implications”.

On Wednesday, the matter was taken up in the NA again after the federal cabinet’s approval to refer it to parliament.

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