ISLAMABAD: As the five-member larger bench of the Supreme Court Wednesday resumed hearing on the PTI’s petition against the Election Commission’s March 22 order, Justice Jamal Khan Mandokhail clarified his remarks made in the previous hearing, saying they had caused ‘great confusion’.
The bench, headed by the Chief Justice of Pakistan Justice Umer Ata Bandial, comprises member judges Justice Ijazul Ahsen, Justice Munib Akhtar, Justice Aminuddin Khan and Justice Jamal Khan Mandokhail.
“I stand by my detailed order,” Justice Mandokhail said, explaining that one part of the judgment was about the administrative powers.
He said the chief justice would be asked to constitute a judges’ committee to look into the rules of administrative powers.
On Tuesday, Mandokhail had remarked that the number of judges who supported the March 1 ruling was an internal matter of the apex court.
“In the second part of the verdict, four of us rejected the suo motu notice and pleas,” he said, adding that the judgment by the four judges was the court order. He, however, stated that this order was not issued by the chief justice.
“How did the president give a date when there was not a verdict? And how did the Election Commission issue the schedule?” Justice Mandokhail asked. The Election Commission counsel replied that they implemented the decision of March 1, adding that after the court order, the ECP approached the president who gave the date of April 30.
He further submitted that the schedule was released after fixing the election date and then preparations for the elections began. He contended that Article 218 of the Constitution held more weight than any other law. The ECP counsel further submitted that a favourable environment for elections was also mentioned in the Constitution and elections should be held within 90 days as per Article 224. Justice Mandokhail asked if the ECP had seen the short order, to which Swati said the commission may have misunderstood.
Justice Muneeb Akhtar, however, observed that in the dissenting note of March 1, it was not written anywhere that the decision was 4-3.
“It was the judges’ right to disagree,” Justice Munib Akhtar remarked adding that minority could not claim to be in the majority. Justice Akhtar further observed that five judges heard the case in the open court and signed the verdict.
Justice Mandokhail, however, observed that the counsel did not answer his question, and stated that the short order contained his dissenting notes, agreeing with the decision of Justices Yahya Afridi and Athar Minallah.
Chief Justice Umer Ata Bandial, however, observed that consultations happening in the chamber should be kept to themselves.
The ECP counsel submitted that the army had refused to provide manpower. He said as per the Constitution, the elections should be conducted in a transparent, peaceful and conducive environment.
Swati submitted that the ECP had written letters to the army, Rangers and Frontier Corps for security adding that the agencies gave secret reports to the commission, which could be shown to the court. He submitted that the reports showed the presence of TTP and various other banned organisations in Bhakkar and Mianwali.
The ECP counsel further submitted that 412,000 personnel were requested for the security of the election, but there was a shortage of 298,000 security personnel.
Justice Munib Akhtar, however, questioned if the ECP knew in February that the elections should be held in October and highlighted that, on the other hand, the ECP said it could not think of deviating from the court decision.
Why the president gave April 30 as the election date if the election was to be held in October, the judge asked adding that the ECP’s order mentioned that it required Rs25 billion to carry out the election but the court was told about Rs25 billion the other day yesterday.
The ECP counsel, however, said Rs5 billion was already released to the ECP adding that the Ministry of Finance said it could not release funds for the election in the current financial year and the finance secretary said it would be impossible to release Rs20 billion.
The apex court observed that there would be no democratic government in the country without elections and hence there was a dire need for reducing the political rivalries that affect the other institutions.
The court sought the federal government’s response for the shortest possibilities of announcing the dates for elections in Punjab and Khyber Pakhtunkhwa.
The court also sought written assurances from the government as well as Pakistan Tehreek-e Insaf (PTI) for reducing the political temperature, ending political rivalries and moving forward to steer the country out of the current political turmoil, paving way for a smooth democratic process.
The court directed Attorney General Mansoor Usman Awan to seek instructions from the defence and interior ministries as to how the security situation could be normalized in the shortest span of time so that the date for holding the elections in the two provinces could be ensured.
The chief justice observed that the objective of the proceedings in the instant case was to adhere to the Constitution and give no advantage to anyone.
“Without elections, there will be no democratic government. Hence, we as a nation have to gear up but not to surrender,” the chief justice remarked.
He observed that as a result of political conflicts among the political forces, other institutions of the country were being affected.
“In order to reduce political rivalries, you need a fair election,” the chief justice remarked and asked the attorney general to seek instructions from the defence and interior ministries about the shortest possibilities for normalisation of the current situation in the country.
“Sportsman comes when there is a fair play but not gladiators,” the chief justice remarked and also asked the Election Commission to come up with a comprehensive election plan. He said the elections could be held even in two days, if it was not possible in one day.
Farooq H Naek, counsel for the Pakistan Peoples Party, however, came to the rostrum and said a full court should be constituted on the matter as the nation was confused.
Justice Mandokhel asked as to why a full court should be constituted adding that the same seven-member bench should hear the case. Naek also pleaded the court that the PPP should also be impleaded as party to the case.
The chief justice, however, observed that the election was supposed to be held in 2023 anyway, and asked if there was no budget for the 2023 election in the fiscal year budget.
At this, the attorney general said the budget for elections was to be kept in the next financial year, as it was not known that the provincial assembly would be dissolved prematurely.
To a question, the attorney general clarified that if elections were held all over the country at once, Rs47 billion would be spent, but in case of separate elections, there would be an additional expenditure of Rs20 billion.
Swati said the special secretary interior had communicated to them that political figures faced security threats and that according to the Ministry of Interior, security threats would not only be present on the election day but also during the election campaign. He said the interior ministry also referred to an attack on Imran Khan.
The counsel maintained that the commission had been informed that it would be ‘impossible’ to provide security for the election without the deployment of the army.
The chief justice observed that terrorism had been a problem in Pakistan for the past two decades but despite that elections were held.
He further said that elections were held thrice during the 1990s ‘when communism and terrorism were on the rise’.
Justice Ijazul Ahsan questioned how the ECP could change the date given by the respective governor and the president, highlighting that the Constitution clearly stated who would provide the polling date. He also inquired if Section 58 of the Election Act was superior to the Constitution of Pakistan.
The chief justice observed that the Election Commission should have approached the apex court and convinced the bench.
Addressing the ECP counsel, the chief justice asked, “You have not yet convinced us as to how October 8 is the appropriate date for elections. What is the magic in October 8?”
“Who has given you the guarantee of October 8 and why not August or September 8,” the CJP asked to which the ECP counsel submitted that October 8 was the first Sunday after the completion of six months.
The Chief Justice observed that in 1988, elections were delayed on the order of the court and due to the situation in 2008 no one objected to the postponing of elections then.
Meanwhile, the court adjourned the hearing for today (Thursday).