ISLAMABAD/LAHORE/LONDON: The Supreme Court on Tuesday declared as unconstitutional the order of the Election Commission of Pakistan (ECP) passed on March 22, 2023, postponing the election in Punjab till October 8 and fixed May 14 as the date for polls in the province.
Strongly rejecting the verdict, the federal cabinet described the apex court order as neither acceptable nor practical and Prime Minister Shehbaz Sharif equated the verdict with the ‘judicial murder’ of ZAB.
Also, coming down hard on the three-member SC bench, PMLN supremo Nawaz Sharif called for parliament to assert itself by filing a reference of misconduct against Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar whose verdict “virtually incapacitated” parliament and made it “redundant”.
Advocating a similar hawkish approach, PMLN Vice President Maryam Nawaz called for bringing to book those who were trying to impose Imran Khan in defiance of the Constitution and law. Earlier, a three-member bench of the apex court, headed by Chief Justice Umer Ata Bnadial and comprising Justice Ijazul Ahsen and Justice Munib Akhtar, announced the reserved verdict in the petitions filed by Pakistan Tehreek-e-Insaf (PTI) challenging the order of ECP postponing the election in Punjab till October 8.
“For detailed reasons to be recorded later and subject to what is set out therein by way of amplification or otherwise, the impugned order dated 22.03.2023 (“EC Order”) made by the Election Commission of Pakistan (“Commission”) is declared to be unconstitutional, without lawful authority or jurisdiction, void ab-initio, of no legal effect and is hereby quashed.” The court unanimously held that neither the Constitution nor the law empowers the commission to extend the date of elections beyond 90 days as provided in Article 224(2) of the Constitution. The court held that the polls will be held in Punjab on May 14 and directed the federal government to provide and release the sum of Rs21 billion to the Election Commission for purposes of the general elections to the Punjab and Khyber Pakhtunkhwa assemblies.
“The Election Programme notified by the commission under the Elections Act, 2017 on 08.03.2023 (vide notification No. F.2(3)/2023-Cord.) for the general election to the Punjab Assembly stands revived and restored immediately with, however, certain modifications,” says the verdict.
The court held that the need for the modifications arises for the following reason.
On March 22, 2023, the court noted that when the EC Order was made, matters had reached stage 5 of the notified Election Programme adding that the EC Order unlawfully purported to withdraw the Election Programme.
“Thus, the remaining stages (Nos6 to 11) could not be given effect to,” the court noted but added 13 days have been lost on account of the unlawful order made by the commission.
“In consequence thereof, the remaining stages have to be moved forward to take account of the lost period, and the Election Programme must be modified accordingly,” the verdict held.
The court concluded that with reluctance but considered it inevitable on account of the situation brought about by the EC Order. Therefore, the Election Programme will, in relation to stages No6 to 11, stand modified, and apply in the following manner: Last date for filing of appeals against the decision of the Returning Officer rejecting/accepting the nomination papers 10.04.2023 7. The last date for deciding appeals by the Appellate Tribunal is 17.04.2023 8. Publication of revised list of candidates 18.04.2023. The last date for withdrawal of candidature and Publication of the revised list of candidates is 19.04.2023. Allotment of Election Symbol to contesting candidates 20.04.2023. Polling day 14.05.2023.“In consequence thereof, the polling day perforce must be shifted, and moved forward from April 30 to May 14, 2023,” says the verdict.
The court recalled that on its specific queries, the commission categorically stated that if it was provided with necessary aid and assistance by the executive authorities in the Federation and the Provinces in the discharge of their constitutional obligations under Article 220, then the Commission, notwithstanding everything set out in the recitals of the EC Order, would be able to organize and conduct the general elections to the Punjab and KPK Assemblies honestly, justly, fairly and in accordance with the law, as required in terms of Article 218(3) of the Constitution.
Therefore, the court directed the Federal Government to provide and release in any case by April 10, 2023, release the commission funds in the sum of Rs21 billion for purposes of the general elections to the Punjab and Khyber Pakhtunkhwa assemblies.
The court held that the commission will be April 11, 2023, file a report in the court stating whether the said funds have been provided and received and if so, whether in full or in part. The court directed the Election Commission to file a report in this regard before the members of the Bench for consideration in chambers. “If the funds have not been provided or there is a shortfall, as the case may be, the Court may make such orders and give such directions as are deemed appropriate to such person or authority as necessary in this regard,” says the verdict.
The Court directed the Election Commission to utilise the funds in the first instance for the general election to the Punjab Assembly adding if there is thereafter a shortfall for purposes of the general election to the KPK Assembly, the Commission may make an appropriate representation to this Court for such consideration and orders as deemed appropriate. The caretaker cabinet that constitutes the Government of Punjab and, in particular, the Chief Secretary and the Inspector General Police of that Province must forthwith, and not later than April 10, 2023, provide a plan acceptable to the Commission for, inter alia, providing sufficient personnel for election-duty and security purposes for the holding of the general election,” says the order.
Furthermore, the court directed that in any case, the Government of Punjab and all officials thereof must, in the discharge of constitutional and legal duties and responsibilities, proactively provide all aid and assistance to the Commission for the holding and conduct of the general election.
“The Federal Government must, in the exercise of its powers and position in terms of Article 243(1) of the Constitution, and all other constitutional and legal powers enabling it in that behalf, and in the discharge of its constitutional duties under Articles 148(3) and 220, provide all such aid and assistance to the Commission as required by it for the holding and conduct of the general elections to the Punjab and KPK Assemblies,” says the verdict
Without prejudice to the generality of the foregoing, the court held that the Federal Government must make available all necessary personnel, whether from the Armed Forces, Rangers, Frontier Constabulary and all other forces under the direct, indirect or ultimate command and control of the said Government, as are required by the Commission for security and other purposes related to the general elections.
In this regard, the court held that the Federal Government must forthwith, and not later than April 17, 2023, provide a plan acceptable to the Commission.“If there is a failure by the Federal Government or the Caretaker Government in Punjab to provide aid and assistance to the Commission and, without prejudice to the generality of the foregoing, in particular, to comply with what has been set out hereinabove, the Commission may make an appropriate representation to this Court for such consideration and orders as deemed appropriate,” the court held.
The court noted that its attention has been drawn to certain matters that were pending in this Court (SMC 1/2023 and CP Nos. 1 and 2/2023) and which were heard and decided on 01.03.2023 by a five-member Bench of the Court by a majority of 3:2 (Umar Ata Bandial, CJ and Munib Akhtar and Muhammad Ali Mazhar, JJ; Syed Mansoor Ali Shah and Jamal Khan Mandokhail, JJ dissenting).
“In particular, our attention has been drawn to the detailed reasons of the two learned judges in minority (released on 27.03.2023), wherein it is, inter alia, stated that the said matters were decided (and dismissed) by a majority of 4:3,” the court noted. The court, however, held with respect that the position as claimed by the learned judges in minority is erroneous and not sustainable in law. “Our attention has also been drawn to an order dated 29.03.2023 made in SMC 4/2022 by a majority of 2:1 by a learned three-member Bench (Qazi Faez Isa and Aminuddin Khan, JJ; Shahid Waheed, J dissenting),” the court noted.
But it held that the hearing of the present matter remained, and its decision by this Bench is, wholly unaffected by any observations made in the aforesaid majority order. “Insofar as the general election to the KPK Assembly is concerned, in relation to which the present petitioners have also sought relief, learned counsel who entered an appearance on behalf of the Governor of KPK Province withdrew from such appearance on account of a certain stand taken by a political party which learned counsel was also representing,” says the judgment. “The Governor, KPK Province, therefore, ceased to have representation before the Court and in such circumstances, the matter relating to the KPK Province is not adjudicated upon, with permission granted to the petitioners to file such petition and/or seek such relief before such forum as is deemed appropriate,” the court held. Later, the federal cabinet categorically rejected the decision of the three-member bench of the Supreme Court headed by the Chief Justice of Pakistan and maintained that it was neither acceptable nor practical, sources said.
The federal cabinet, with Prime Minister Shehbaz Sharif in the chair, also pledged to utilize all possible options to prevent the implementation of the order of the three-member bench.
The cabinet unanimously observed that the decision of the Supreme Court was a verdict by minority judges and could not be imposed on the majority, the sources said. Moreover, it was also observed that the decision was also against the resolution of parliament, which called for the constitution of a full court bench to hear the appeals against the delay in elections and that elections be held on the same day.
The sources said the ministers belonging to government allies also reposed full confidence in Prime Minister Shehbaz Sharif, who called a meeting of parliamentary leaders belonging to PML-N and coalition partners. However, it was also observed that the country could not afford any constitutional or political crises.
In his reaction, Prime Minister Muhammad Shehbaz Sharif equated the judicial murder of former Prime Minister Zulfikar Ali Bhutto with the verdict of the apex court and said that it was ironic that Zulfikar Ali Bhutto was judicially murdered on April 4 and once again on the same day justice was ‘murdered’.
Speaking in the National Assembly, the prime minister said the cabinet meeting had demanded that the reference over the judicial murder of the late premier pending for the last 12 years should be taken up and decided by the full court. “The world knows that ZAB’s case was a judicial murder as one of the former judges who had decided the case, had accepted it in his memoirs,” he said. Praising ZAB, Shehbaz Sharif said he was among the founders of the 1973 Constitution and his historic contribution would always be remembered. “The events that took place in the past 72 hours are tantamount to the murder of justice.”
Alluding to the SC verdict, Law Minister Senator Azam Nazir Tarar said the entire country is in agreement that the two assemblies were dissolved to satisfy the ego of one person to create a political division in the country. He said the government wanted state intuitions to work within their constitutional ambit. The law minister said Justice Qazi Faez Isa ordered to stop the hearing of the suo motu hearings in light of the new law passed by the parliament. He said today, another 6-member bench of junior judges was formed that overturned the decision of Faiz Isa’s bench. “Every knowledgeable person will question why the six-member bench overruled the previous order if the three-member bench had no status,” he said.
The law minister asked if such hasty decisions will bring stability to the country and if they were in accordance with the law and the Constitution. He said legal cases which have far-reaching consequences should be heard with patience and by a larger bench and not through a show of institutional hegemony and stubbornness. He maintained that the government had requested a full court bench but their legitimate demands were rejected. He said voices are being raised from within the institution about a one-man show, and that the majority decision cannot be changed by the minority opinion. He said the verdict has negated the basic principle that justice should also be seen done.
Tarar said only the Election Commission of Pakistan had the mandate to announce the schedule of the election, keeping in view the ground realities but the Supreme Court has now given the date in its verdict. The verdict by the three-member SC bench would deepen the constitutional and political crises in the country. “We have reservations about the decision and our legal team will decide about the future course of action after consultations,” he added.
Senator Tarar said that a reference to the judicial killing of Zulfikar Bhutto had been pending in the Supreme Court for 12 years, and the cabinet has decided to write to the Supreme Court for holding an early hearing of this reference. Perhaps, under this pretext, our entire Supreme Court should sit together and correct the constitutional and legal mistakes, he said.
Minister for Communications Asad Mehmood termed the SC decision as “Judicial Martial Law” and alleged that justice was not meted out in the case as the demand of all the political parties for a full bench to hear the case was ignored. “We will not allow this decision to be implemented and will fight till the end as you are interfering in the working of the chief executive,” he said. Demanding a consultative meeting of the party heads, he pledged not to leave the prime minister, Constitution and Parliament at anyone’s mercy.
Federal Minister for Railways Khawaja Saad Rafiq said that Imran Khan had the support of the Satanic Alliance and said efforts are being made to bring him into power again. He said the chief justice should take notice of our request and form a full court. He said the basis of today’s decision is the illegal decision in which 25 members of Punjab were disqualified. “What kind of justice is it that the review was not heard.” The PML-N leader said if elections take place in Punjab first, it could influence polls in other remaining provinces. Addressing Chief Justice Umar Ata Bandial, the railway minister asked if the Supreme Court meant only the chief justice. “This cannot continue. We will not remain silent and will speak up.” Minister for Climate Change Senator Sherry Rehman, while speaking in the National Assembly, said that today, on April 4, another judicial murder has taken place. Rehman remarked, “Ladla [blue-eyed boy]” was being protected. The PPP senator asked who was running the country. She maintained that the judiciary has been “politicised today” and said they did not want any collision in the country.
In his reaction, Pakistan Muslim League-Nawaz (PMLN) supremo Nawaz Sharif called for Parliament to assert itself and file a reference of misconduct against Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar for their Punjab polls verdict which, he claimed, has “virtually incapacitated” parliament and made it “redundant”.
Speaking to reporters, Nawaz argued that the survival of the country depends on the strength of its democratic institutions, and criticised the ongoing “drama” of ousting elected governments.
The former prime minister said that former army chief Gen Qamar Javed Bajwa and Gen (retd) Faiz Hameed had conspired with Imran Khan and Supreme Court judges – including Saqib Nisar, Azmat Saeed Sheikh, Ijazul Ahsan, Asif Saeed Khosa and Umar Ata Bandial – to oust him from power in 2017 for not taking salary from his son. He said that it was due to the unfair decisions made by the judiciary that Pakistan was in a mess today.
Calling the verdict a reflection of a “one-man show” in the judiciary, Nawaz argued that one individual should not be allowed to hold multiple functions, such as the prime minister, defence minister, Election Commission of Pakistan, and above all, parliament. According to him, the verdict was aimed at benefiting one pampered person while incapacitating the state. He argued that allowing one individual to hold multiple functions is detrimental to democracy and ultimately benefits only a select few.
“This is a pity,” Nawaz said, adding: “This is the result of over 70 years of mismanagement and corruption in our political system. It is time for us to re-evaluate the way we run our country.” He alleged that the one-man verdict did not represent a fair decision. The verdict is like a charge sheet against the bench. “It is a symptom of the larger problem plaguing our political system,” he stated. “For over 70 years, we have witnessed mismanagement and corruption that has eroded the trust of the people in their government. Punjab was earlier handed over to PTI Chairman Imran Khan by declaring the MPAs disqualified and denying them the right to vote in the chief minister election.” The PMLN Quaid urged the nation to wake up as these people will destroy the country. People should take a stand against such persons to check their nefarious designs. He highlighted the “doctrine of necessity” which had been invoked numerous times in Pakistan’s history and argued it has only been applied to elected governments, while dictators have enjoyed immunity from prosecution. These double standards have weakened Pakistan’s democratic institutions. He expressed confusion over the rejection of the demand to constitute a full court, saying that he believed there may have been ulterior motives behind the decision. He believed that the decision against him was incorrect and should have been reviewed by a constituted bench. “What was the hurdle behind forming a full-court bench,” the PMLN supremo asked.
According to him, the real victims of his ouster were the people of Pakistan, as these individuals were pushing the country into chaos. He praised the judges who were on the right path, stating that they were waging a “jihad” for the betterment of the country. Nawaz said that a man is known by the company he keeps. He said that the CJP was protecting the corruption of Justice Mazhar Ali Akbar Naqvi whose audios have been leaked talking to Pervaiz Elahi and Fawad Chauhdry, who is “talking about giving a truck to the judge.” Nawaz said that he did not understand how governments and parliaments would work in the country when prime ministers like him and Zulfikar Ali Bhutto were thrown out. In her reaction, PMLN Senior Vice President Maryam Nawaz declared the decision of the three-member bench of the Supreme Court as the last blow to the conspiracy of re-writing the Constitution.
In a series of tweets, she said the work done by Faiz, Khosa and Saqib Nisar in 2018 has now been taken up by this bench. “A majority of the Supreme Court revolted against this appalling and brazen facilitation and one-man show,” she said, adding, “Time has come for Parliament to stop this facilitation with its own constitutional and legal hands.”
Maryam said that Tuesday’s decision was the last blow of this conspiracy which started by re-writing the Constitution and presenting it to Imran, the Ladla of the bench. “It is not enough for the federal cabinet to reject the decision,” she said and added that those who try to impose Imran Khan in defiance of the Constitution and law should be brought to book. The PMLN chief organiser said: “So be it! Even before, they suffer disqualifications for speaking the truth, they will suffer again. It should be remembered that the disqualification of Nawaz Sharif for jokes like Iqama is still intact. You’re probably used to seeing cowards walking around with their faces hidden in black boxes.”
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