Justice Jamal Mandokhail asks what will happen to election dates if ECP’s decision is annulled
Supreme Court Chief Justice Umar Ata Bandial Tuesday said the Election Commission of Pakistan’s decision regarding postponing the polls in Punjab was written in haste.
The CJP’s remarks came after the country’s top court held the hearing on Pakistan Tehreek-e-Insaf's (PTI) petition challenging the ECP’s decision on Punjab and Khyber Pakhtunkhwa elections.
Meanwhile, during the hearing, Justice Jamal Mandokhail asked what would happen to election dates if the electoral authority’s decision was annulled.
The remark came during the hearing ofPakistan Tehreek-e-Insaf's (PTI) petition against the Election Commission of Pakistan's (ECP) decision to postpone the Punjab polls from April 30 to October 8 after financial and security authorities expressed their inability to support the electoral process.
The Pakistan Tehreek-e-Insaf (PTI) had moved the apex court following the electoral body's decision to postpone the Punjab polls from April 30 to October 8 after financial and security authorities expressed their inability to support the electoral process.
Following the ECP's announcement, Khyber Pakhtunkhwa Governor Haji Ghulam Ali also urged the polls organising body to hold the general elections on the same date (October 8) as the Punjab polls given the growing security threats from terror groups operating from the Pakistan-Afghanistan border regions.
CJP Bandial also said that the two judges of the Supreme Court who gave dissenting notes had their own opinion and it was not related to the current case dealing with the extension of the Punjab and Khyber Pakhtunkhwa elections' date.
The court adjourned the hearing toll 11:30am tomorrow (Wednesday).
A five-member larger bench, headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, was hearing the case. Other members of the bench include Justice Ijaz Ul Ahsan, Justice Munib Akhtar, Justice Amin-Ud-Din Khan and Justice Justice Jamal Khan Mandokhail.
At the outset of the hearing today, CJP Bandial welcomed the newly appointed Attorney General of Pakistan Mansoor Usman Awan, and said that the court would need assistance of senior lawyer Farooq H Naek — who was also present in court — on the matter.
The CJP remarked that the court didn't want to drag this matter.
He said that ECP's jurisdiction as per yesterday's order will be seen by the court, while the request of the ruling coalition parties to become party in the case will be looked into later.
The ruling alliance, earlier in the day had decided to become a party in the case.
The Pakistan Muslim League Nawaz (PML-N), Pakistan Peoples Party and Jamiat Ulema-e-Islam-Fazl (JUI-F) had filed the pleas in the SC in this regard, and wished to present their stance in today's hearing.
"Rule of law and democracy are two sides of a same coin. There should be mutual tolerance, patience and law and order" CJP Bandial observed.
Meanwhile, Naek interjected and told the bench that they were also stakeholders in the case.
At this, the CJP assured the senior lawyer that no one denied Naek's importance but he believed that they shouldn't engage in a legal controversy.
He said that the parties had to decide the direction of the circumstances while the court had to keep the facts in view.
“On the March 1 verdict, my stance is that the law empowers the president to give a date for the elections. If you want clarification on the March 1 decision then file a separate petition,” said the CJP. He added that the “simple question” in the case was whether the ECP can change the election date or not.
“If ECP has the power then the matter will be resolved,” said the CJP
On the other hand, the attorney general contended that if the court decision was 4-3 then there is no order. He added that if it was not a court order then the president cannot give the election date.
“The March 1 decision should be decided first,” said the AGP.
At this, CJP Bandial remarked that right now the case was not about giving the election date but about the delay. He added that elections were necessary for a democracy.
“Two honourable judges gave a decision. It’s the opinion of those two judges but is not related to the current case. Do not bypass a sensitive matter,” remarked the CJP.
The AGP responded that the current petition was seeking the implementation of the court orders in the March 1 judgment.
At this, CJP Bandial remarked that the bench members were there to review the questions raised in the petition. Apex court's jurisdiction wasn't limited to just the petition, he added.
On this point, AGP interjected and appealed for the formation of a full court on the matter.
“It is a request that this is an important matter and if the bench deems it appropriate then a full court should be formed,” said the AGP.
However, Justice Mandokhail remarked that the number of judges who favoured the March 1 ruling was an internal matter of the apex court.
"Just tell if the Constitution requires conducting elections in 90 days or not, and whether the ECP can postpone the date of the election," he asked.
Upon hearing Justice Mandokhail, the CJP thanked the judge for clearing the matter.
Meanwhile, PTI's lawyer Ali Zafar maintained that every institution has to work while staying in its constitutional bounds.
At this, CJP Bandial remarked that he expected the PTI's senior leadership to have the same behaviour as expressed by the lawyer. He also asked the lawyer whether he talked to the senior party leaders.
"PTI would have to be the first [one to speak] because they have approached the court," the chief justice stated. He advised the parties of the case to avoid differences saying that there was violence, intolerance and an economic crisis in the country.
At this, Barrister Zafar maintained that these crises would intensify if the elections are delayed.
CJP Bandial then remarked that it would order the government only if PTI takes the initiative.
Moving on, Justice Khan asked if the 90-day period before the election could be shortened.
At this, Justice Ahsan remarked that the ECP was bound to give the schedule for polls within 90 days. While Barrister Zafar maintained that the electoral watchdog couldn't withdraw the order once given.
“Unfortunately, no one has any doubt that elections now can't be held in 90 days,” remarked Justice Mandokhail. He also wondered if there was a democratic way to resolve the issue.
Justice Mandokhail lamented that no one cared about the Constitution in Pakistan anymore but elections have to be held under any circumstances.
"The question is, who has the authority to extend the duration of 90 days and if the assembly should be dissolved at a single person's behest," the justice added.
PTI's lawyer argued that the prime minister and chief minister are the elected representatives.
At this, Justice Mandokhail remarked that the assembly can be dissolved if the prime minister’s party moves a no-confidence motion against him.
However, Barrister Ali Zafar contended that the assembly couldn't be dissolved in case of a no-confidence motion.
Justice Mandokhail observed that the Parliament should review the authority of a single person to dissolve the assembly.
At this, Barrister Zafar said that the Parliament can debate over the authority of PM and CM.
"The Constitution doesn't allow any delay in the fundamental right of election," he maintained, adding that efforts to defer the polls were made in the recent past.
Zafar added that the ECP maintained that it couldn't give a date, while the governor said it was his authority to give the polls date.
On this point, Justice Ahsan remarked that the implementation on the apex court's judgement had been done as the election schedule was issued. However, the question before the bench was whether the ECP had the authority to change the date given by the president.
"Can the election commission delay [elections] beyond 90 days," he asked.
Meanwhile, CJP Bandial remarked that the Election Act's Section 58 did not allow deferment of the polls.
At this, Barrister Zafar maintained that the ECP based its order on two clauses from the Constitution.
Justice Mandokhail then interjected that the electoral watchdog had excused itself from fulfilling the constitutional duty while stating the reasons.
“What would have happened if the ECP hadn't given the date of October 8,” he asked.
At this, Justice Ahsan remarked that the electoral body could have approached the president for changing the election date.
"All administrative institutions are bound to cooperate with the ECP. Election commission can approach only if there are solid reasons," he added.
Barrister Zafar remarked that the Article 220 of the Constitution binds all governments and institutions to cooperate with the ECP, but the electoral body made a decision after taking input from the institutions only.
He urged the court to question the electoral watchdog why it did not use its constitutional powers. He argued that Article 5 of the Constitution would apply if the administrative institutions don't cooperate.
The lawyer said that according to ECP, Article 254 gives the authority of deferring the polls.
At this Justice, Mandokhail remarked that the electoral body's date was already after 90 days period.
Was the date after 90 days period correct, he asked.
Barrister Zafar conceded that the polls couldn't be conducted within 90 days even if the court issues an order right now.
At this Justice, Mandokhail remarked that the president had also given a date after the 90-day period.
"Article 254 can be invoked after the job was done but not before that," he added.
Moving on, Justice Ahsan observed that in practice, if the election is not possible in 90 days, the court could issue an order.
However, Justice Akhtar remarked that if the conducting of elections were not possible, the Election Commission should have approached the court.
He explained that the court could be approached for the polls on the same day if another assembly was dissolved before the date of the elections for an assembly.
"The election commission cannot automatically issue an order to postpone elections. If the Election Commission can postpone the election for 6 months, then it can do it for six years as well,” he observed.
At this, Justice Mandokhail remarked: “The constitution is silent on who can move the elections ahead”.
“Shouldn't parliament amend the constitution?” he asked. It will be best if the Parliament amends it, the justice added.
“The question is what will happen to the elections that are to be held until the amendment is made,” Justice Akhtar remarked.
At this, Barrister Zafar maintained that the elections could never be held if they consider the basis on which elections were postponed.
Justice Akhtar then remarked that if was a matter of funds, “how will the caretaker government provide the funds?”
"Will the problems present today not be there on October 8," he asked.
At this, Barrister Zafar contended that the ECP had said in its order of March 22 that the funds had not been provided.
He argued that the election commission had never requested funds.
Justice Akhtar then remarked that he had read the premier's statement in the newspaper. “The federal government says that Rs500 billion tax revenue had been collected till March,” he added.
He said that it was surprising that the government was unable to spare Rs20 billion out of those Rs500 billion for the elections.
"As per the ECP's order, it would be difficult to provide funds," said Barrister Zafar quoting the finance secretary and added the Finance Ministry did not altogether refuse to provide funds but said that it would be difficult for them to arrange this amount.
Justice Akhtar remarked that the finance secretary had said that the funds for the election were not available now then how would they be available in the future, “which means that polls will never be held at all”.
"How can a government secretary make such a fantastic statement?" questioned Justice Akhtar.
The collected tax goes to federal consolidated funds, he added.
During the hearing, CJP Bandial suggested a cut in the judges' salaries for the elections. "An entire budget is not needed for elections," he added.
"Our salaries can be cut for collecting Rs20 billion," said the chief justice, adding that the government could save Rs20 billion by reducing expenses.
Senator Naek said that the expenditure of federal consolidated funds was spent with the Parliament's approval.
Justice Akhtar wondered if the assembly had been dissolved then how the funds could be issued.
“In the current case, the National Assembly is present. The new assembly will approve the expenses,” said Naek. He added that the finance secretary’s statement could only be explained by the ECP.
“How can the finance secretary issue funds that are not approved,” asked Justice Mandokhail.
Amid this debate, PTI’s lawyer contended that the issuance of funds was a technical issue.
At this point, CJP Bandial remarked that the country was going through an economic crisis and it was a reality that could not be ignored.
“Sacrifice is necessary to deal with the crisis. The cost of the election can be accumulated by cutting 5% of salaries,” said the CJP. He added that in Turkey apart from the earthquake-hit areas elections were being held everywhere.
On this point, Zafar interjected and remarked that the “Election Act allows the ECP to cancel polling where there is a problem; it cannot postpone the entire election”.
“Elections can only be postponed by declaring emergency,” remarked CJP Bandial. He also asked if ECP’s decision recommended imposing an emergency.
“Absolutely not,” responded Zafar.
The court then took a 30-minute break.
Later, Justice Akhtar said that elections could be held anytime and the commission should remain prepared.
“It is not the election commission’s job to run the government,” he added.
Justice Bandial said that the ECP, according to the Constitution and law, has no authority to change the date of elections. “It is very clear that it is not the election commission’s authority to give the date of polls.”
“Shouldn’t the election commission have approached the Supreme Court for delaying the elections?” Justice Akhtar asked.
In response, the attorney general said that the matter eventually comes to the court when there was a question of using constitutional authority. “A better answer to this question can be given by the election commission’s lawyer,” he said.
The attorney general said that the ECP’s order had been challenged.
The electoral authority’s counsel sought extra time from the court for additional documents. Justice Bandial refused to grant time till tomorrow.
Justice Ahsan remarked that it was the responsibility of the federation to provide funds for the election.
“A supplementary grant can be issued under the Constitution,” Justice Akhtar said. Meanwhile, AGP Awan remarked that the matter was not of constitutional authority but that of the lack of resources.
He added that the Defence Ministry had refused to provide army personnel because of the country’s security situation.
“Is there a guarantee that the situation will improve in October?” Justice Akhtar asked.
“The Election Commission may have thought that the term of all assemblies would complete in October,” the attorney general responded.
Commenting on the reasons that could cause the polls to delay, the chief justice said that while travelling by train in Sindh, he saw that it was submerged in water. He added that "the train in Balochistan travels with the same speed as that of people on foot, while the rail route remains disconnected from Quetta".
“Elections can be postponed where movement is difficult,” Justice Bandial said.
The chief justice said that the court was examining the reasons for postponing polls for the first time. “The real situation is [understanding] how elections could be postponed for such a long time. Polls were only postponed for 40 days after Benazir Bhutto’s martyrdom.”
He added that the ECP’s offices were burned down in protest. “There were protests across the country on the tragedy. There is need for political maturity for elections,” Justice Bandial said.
Speaking about the issue of funds, the attorney general said that the matter was also brought to the Supreme Court in 1988. “The court filled the gap through its opinion on the presidential reference,” he said.
“Should we understand that the nation is held hostage by terrorists?” Justice Jamal Mandokhail remarked.
Army refusing election duty?
Justice Munib asked if Pakistan has become a banana republic again. “The forces function under the government. How can they refuse to provide security?” Justice Munib questioned.
He asked what problem did the army have in performing election duty.
Polls in four months
Justice Ahsan said that the Chief Election Commissioner Sikandar Sultan Raja himself said that polls can be held in four months.
“There is a difference between the situation of the country then and now,” the attorney general said.
The chief justice added that the election commission can only give the reason mentioned in its order.
Commenting on the 2008 general polls the attorney general said that the ECP gave the new date itself. “No party challenged the new date of election.”
“Mohtarma’s [Benazir Bhutto] martyrdom was a major reason for postponing elections,” Justice Ijaz said.
“The political leadership at the time exhibited nobility,” the attorney general said.
Census and consensus
The attorney general also informed the court about the ongoing digital census.
“It takes four months to demarcate constituencies after the census. Government staff is busy with census. The ratio of seats changes after the census,” he said.
Justice Akhtar, in response to the attorney general’s comments, asked if elections couldn't be held during the census.
The attorney general responded that elections were held based on the published census.
“What happens if assemblies are dissolved during the census and can the interim government publish census results?” Justice Akhtar asked.
The attorney general said the census would complete on April 30. To this, Justice Akhtar remarked that it took several years to get the results of the last census and asked how could the government be trusted with publishing the results on time.
“Both the government and the opposition don’t trust each other,” the attorney general said.
Justice Akhtar reiterated that elections should be held in 90 days as per the Constitution because assemblies of both provinces stood dissolved.
He asked if the election’s constitutional period could be extended and remarked that the Council of Common Interest had nothing to do with the polls.
The attorney general said that the results of the census would impact the national assembly elections in Punjab and KP.
Justice Bandial, meanwhile, said that a political party had been objecting to the census since 2017. “Representation of the people should be transparent,” he added.
Ruling alliance decides to become party in case
Hours before the hearing resumed on Tuesday, the ruling alliance decided to become a party in the case.
The Pakistan Muslim League Nawaz (PML-N), Pakistan Peoples Party and Jamiat Ulema-e-Islam-Fazl (JUI-F) have filed the pleas in the SC to become a party and will present their stance when the hearing resumes.