Chief Justice of Pakistan (CJP) Umar Ata Bandial on Monday indefinitely adjourned the hearing of Election Commission of Pakistan’s petition asking the top court to revisit its April 4 order of holding polls to the Punjab Assembly on May 14 after Attorney General for Pakistan (AGP) Mansoor Usman Awan said a new law pertaining to review of judgments had come into effect.
The hearing — which was conducted by a three-member bench comprising the CJP, Justice Ijazul Ahsan and Justice Munib Akhtar — was put off shortly after it commenced.
During the hearing, the AGP raised objections to the bench, highlighting that the Supreme Court (Review of Judgements and Orders) Bill 2023 had become law after receiving the president’s assent.
He also submitted a notification, signed by the president, on the same in court.
The notification, a copy of which is available with Dawn.com, says: “The Supreme Court (Review of Judgements and Orders) Bill, 2023 is assented to, as advised by the prime minister.”
Subsequently, CJP Bandial said the new law would be discussed during a hearing on Thursday (June 1) pertaining to the Supreme Court (Practice and Procedure) Bill 2023.
The law, passed by both the Senate and National Assembly earlier this month, states that it is necessary to ensure the fundamental right to justice by providing for a “meaningful review” of the apex court’s judgements and orders in the exercise of the Supreme Court’s original jurisdiction, as described in Article 184 of the Constitution.
At the outset of the hearing, AGP Awan came to the rostrum and said that he wanted to put some points before the bench.
He revealed that after the president’s assent, the Supreme Court (Review of Judgements and Orders) Bill 2023, had become law. “As per the new law, the scope of review and appeal is now the same.”
The AGP went on to say that the review could only be heard by a larger bench and raised objections to the three-judge panel hearing the case.
Here, Justice Akhtar remarked, “The ECP lawyer has a smile on his face after hearing about the Supreme Court (Review of Judgements and Orders) Bill 2023.”
Meanwhile, the CJP asked Awan if the government had abandoned the Supreme Court (Practice and Procedure) Bill 2023 — which aims to deprive the office of the chief justice of powers to take suo motu notice in an individual capacity — and whether it had become a law or not.
“The practice and procedure bill has been fixed for hearing on Thursday … let’s hear this case on Thursday too,” Justice Bandial said, highlighting that the jurisdiction of Article 184(3) needed to be reviewed to “some extent”.
“Our decisions regarding Article 184(3) also suggest some avenues,” he added.
Article 184(3) of the Constitution grants the SC powers to issue an order if it considers a question of public importance with reference to the enforcement of fundamental rights is involved.
The CJP also asked the AGP if the other party in the case had been informed about the review of judgements law to which Awan said that PTI lawyer Ali Zafar was on vacation. “We will hear this case in the presence of the other party,” Justice Bandial said.
He also stated that whatever happened shouldn’t be “in a surprise or hidden way”. “Play the role of a bridge,” the top judge told the AGP.
Justice Bandial noted that with the Supreme Court (Practice and Procedure) Bill 2023, the government had created a new judicial jurisdiction and tried to “interfere in the administrative affairs of the court”.
“But we are happy that the current law is about Article 184(3).
“We understand that a new law has been passed … the PTI will also be made aware of it,” he added.
At one point during the hearing, the CJP also mentioned that the apex court would be resuming its hearing on a set of petitions moved to challenge the government-appointed judicial commission to probe audio leaks. “Take instructions from the government in this regard as well,” he told the AGP.
“You must have read our order on the audio leaks commission. Keep it in mind that the court didn’t nullify the commission,” Justice Bandial stated.
He went on to say that the court also had to protect the freedom of the judiciary. “Matters cannot be run on the basis of secret meetings,” the top judge said.
He also remarked that “it is a historical accident that there is only one chief justice”, adding that in all the previous instances a judicial commission was only formed with the assent of the CJP.
“A procedure needs to be followed when you want to investigate something,” Justice Bandial added. “I won’t form a commission which includes me, but investigations can be conducted by another judge.”
He observed, “This political temperature won’t make the economy or security [situation] any better.”
After the proceedings, Law Minister Azam Nazeer Tarar said while speaking to Geo News that PML-N supremo Nawaz Sharif and Jahangir Khan Tareen would not be the beneficiaries of review of judgements law.
“They have already used their right for a review against their convictions,” he said.
According to the Constitution, once an assembly is dissolved prior to completing its term, general elections for the house are to be held within 90 days from the date of dissolution.
The crisis began when despite the passage of almost 40 days since the assemblies were dissolved, the ECP and governors in both provinces did not give a date for polls. During this time, the Lahore High Court (LHC) had ordered the holding of polls in Punjab within the constitutionally stipulated timeframe but both the ECP and the governor filed an intra-court appeal, asking for clarity on who was supposed to finalise the date for polling.
The Peshawar High Court, on the other hand, was also hearing a petition asking for polls to be held in KP within the stipulated timeframe.
On Feb 22, the Supreme Court sprang into action, taking suo motu notice of the delay in announcing elections in the two provinces.
This began a long and dramatic chain of events — during which clear divisions and conflicts became visible within judges of the country’s top court — that eventually ended with the three-member bench’s verdict on April 4, ordering polls in Punjab to be held on May 14 and directing the federal government to release Rs21 billion for the exercise.
The top court did not give a decision on polls in KP, asking the petitioners to approach the Peshawar High Court on the matter.
However, despite the SC’s order on Punjab polls, the government failed to release the funds and to date 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 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 said it 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 — defying 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 April 26, National Assembly Speaker Raja Pervaiz Ashraf — to convey the “sentiments and thoughts” of members of the House about the court’s orders on elections in Punjab and Khyber Pakhtunkhwa — wrote a letter to CJP in which he urged the higher judiciary to “exercise restraint” and respect parliament’s legislative domain.
A day later, the SC granted temporary respite to the country’s main political parties and gave them time to hold dialogue on elections.
The talks between the PTI and the government were aimed at developing a consensus on a date for elections in one go across the country. After three rounds of talks, Ishaq Dar — who was leading the government side — told reporters on May 2 that both sides had agreed to hold elections to the national and provincial assemblies on a single date under the watch of caretaker setups, but it had yet to be decided what that date would be.
But while the finance minister and former prime minister Yousuf Raza Gilani claimed positive headway in the sitting, with both sides showing flexibility, PTI leader Shah Mehmood Qureshi regretted that no decision could be taken on “practicable proposals” put forward by his party.
Subsequently, the PTI told the SC in a report that no solution could be arrived at and asked it to implement its order for holding polls in Punjab on May 14.
In the four-page report, submitted a day after the two sides concluded the make-or-break round of the much-awaited negotiations on polls, the PTI told the top court that “in spite of the best efforts of parties, no solution within the Constitution” was found.
Subsequently, the ECP on May 3 moved the top court seeking a review of its order on holding polls in Punjab on May 14, saying that the verdict was “per incuriam (lacking regard to the law or the facts) to the Constitution, law and previous judgments”.
Last week, both the federal and Punjab governments, in their written replies submitted to the SC, seconded the ECP’s request for the apex court to review its decision.
In its reply, the federal government contested that the SC’s decision on April 4 to set the election date in Punjab was against the Constitution, as the apex court utilised the powers of the ECP to announce the polling date.
The federal government argued that it was the responsibility of the ECP to conduct free, fair and transparent elections. However, the SC’s decision to announce the polling date itself rendered the ECP’s authority ineffective, it said.
Furthermore, the government said that if elections were held first in the province of Punjab, which holds the highest number of seats, it could undermine the integrity of the National Assembly elections.
A victory in Punjab determines the formation of the central government, therefore, elections in Punjab should be held simultaneously with the National Assembly polls, the federal government said, praying the apex court to revisit its April 4 judgement.
Opposing the idea of holding elections in Punjab immediately, the provincial government argued that the SC did not have the power to announce elections date.
The Punjab government further said that the SC by announcing elections in the province on May 14 had violated the distribution of powers as laid down in the Constitution. Under Article 218, holding free and fair elections is the responsibility of the ECP, read the reply.
The Punjab government said it was due to the distribution of powers that the apex court had refrained from giving date for elections in Khyber Pakhtunkhwa.
Apart from that, the provincial government said, the law and order situation had changed after incidents of violence on May 9. The reply stated that military and government buildings were damaged and set ablaze following the arrest of PTI chairman Imran Khan. Moreover, 162 policemen were injured, 97 police vans were set on fire, read the reply.
It was further stated that contrary to 554,000 police personnel required to provide security if elections were held in Punjab now, there were only 77,000 personnel available.