The Supreme Court Monday reserved verdict on the Pakistan Tehreek-e-Insaf’s (PTI) plea against the Election Commission of Pakistan’s (ECP) decision to delay the elections of provincial assemblies of Punjab and Khyber Pakhtunkhwa.
A three-member SC bench comprising Chief Justice Umar Ata Bandial, Justice Munib Akhtar and Justice Ijaz ul Ahsan reserved the verdict after hearing all the parties, including the government, the PTI, the ECP and others.
During the course of proceedings, the secretaries of finance and defence ministries briefed the court and submitted their separate reports.
Attorney General for Pakistan (AGP) Mansoor Awan submitted a statement and requested the court to form a full court to hear the case.
He also pleaded with the court to dismiss the PTI’s petition in the light of what it interpreted as a 4-3 order issued by the apex court on March 1.
The chief justice rejected the request for a full court and suggested that a larger bench could be sought.
The AGP also highlighted that the PTI petition was based on the SC’s March 1 verdict.
Upon this, the chief justice asked how could the ECP give the date of October 8 for polls. The law gave no one the authority to delay elections and only the court could delay the date for polls, he added.
He said elections were postponed on the orders of the court in 1988.
Justice Ijaz said the actual matter under consideration was the ECP’s decision to postpone elections. He said the Commission was bound to follow the court orders.
The AGP said during the first round of the hearings a nine-member bench had conducted the proceedings.
The CJP said only one judge had dismissed the proceedings and Justice Athar Minallah had not mentioned rejecting the request in his dissenting note. Four judges had recused themselves from the bench.
He said there was no doubt in the fact that a judge could not be thrown out of a bench. When the court ordered the reconstitution of a bench, it did not mean that other judges were being removed from the bench, he added.
Justice Ijaz said forming a new bench was a judicial directive and not an administrative one.
The AGP argued that the opinion of Justice Mandokhail and Justice Mansoor Ali Shah could not be separated.
Justice Akhtar responded by citing Justice Afridi’s statement which stated that he had left his inclusion in the bench to the chief justice’s discretion.
He also pointed out that the absence of the two judges was not brought up during the two-day suo motu hearing conducted by the five-member bench.
The chief justice said a new bench was formed and the hearing began again. The
AGP had not succeeded in convincing the court to separate the judges who previously heard the case, from the current bench.
Advocate Irfan Qadir, counsel for the Election Commission, said stopping hearings of cases in high courts was not according to the Constitution.
He said the KP governor had issued a date for polls in the province and contended that the SC’s order regarding the president giving the date for elections was not as per the law.
He said the president could not take any decision regarding elections independently. The order given to the president regarding giving a date for elections was unconstitutional, he added.
He said the president was bound by the cabinet’s advice in all matters. The president only had authority when it came to the general elections as per the Election Act. The general elections would be held throughout the country at the same time, he added.
He said Justice Qazi Faez Isa’s decision had stopped the hearing of all the cases under Article 184(3) of the Constitution.
During the hearing, the chief justice asked Pakistan Peoples Party lawyer Farooq H Naek whether he had ended the boycott of the bench.
Advocate Naek said the PPP had objections to the formation of the bench and had not boycotted the proceedings.
The chief justice asked who had boycotted the three-member bench. He denied hearing the coalition government lawyers.
Advocate Kamran Murtaza, in his arguments, said his client had reservations about the bench.
Pakistan Muslim League-Nawaz (PML-N) lawyer Akram Sheikh said they were yet to take back the power of attorney and they had objections to the bench hearing the case. He also clarified they have not boycotted the proceedings yet.
Justice Munib Akhtar said on the one side lawyers were boycotting the hearing and on the other, they wanted to be part of the court proceedings.
The chief justice said a question had been raised how could the ECP give the date of Oct 8 for polls as the ECP had no such power to do so.
The AGP said the SC Registrar’s Office released a circular after Justice Qazi Faez Isa’s March 29 verdict. The court order or decision could not be set aside with a circular, he added.
He said the court decision could only be nullified in the review petition.
The chief justice said no decision was nullified through a circular, it was only issued on the matter of barring hearings under Article 184/3.
He observed that no clear directions were given in the order passed by a three-member bench headed by Justice Qazi Faez Isa.