A three-member bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, and comprising Justices Munib Akhtar and Justice Ijazul Ahsan was hearing the petition.
As the CJP announced reserving the verdict, he observed that the apex court did not wish to put the people in a difficult situation.
“The court will be blamed if something were to happen during the polls,” he stated. Justice Bandial added that it was to avoid this situation that political parties were given the option to resolve the matter through political dialogue. None of the parties responded to this offer, he maintained.
“The constitution is clear about when elections should be held,” the CJP maintained.
The chief justice stated that people believed they were above the Constitution and wanted their cases to be decided by judges of their preference. To this, the Attorney General for Pakistan (AGP) Mansoor Awan said that no one had done so.
The CGP said that the comment of “a six-judge panel” was made by the AGP and the ECP’s counsel Irfan Qadir, the court heard the remark but chose not to react to it. He continued that the parliament and government were respected, and a political solution was found when a crisis arose. Irked by the government declaring ‘no-confidence’ in the SC bench hearing the case, the SC refused to listen to the arguments of the ruling parties’ lawyers. Pakistan Muslim League-Nawaz (PML-N) lawyer Akram Sheikh stated that he had appeared before the SC to assist it. He contended that he could make his own decisions if a party asked him to support something illegal. The lawyer added that he had the utmost respect for the apex court. The CJP stated that had respect for Sheikh, Farooq H Naek and Kamran Murtaza. However, the ruling parties had expressed no confidence in the three-member bench hearing the case. He added that Sheikh was not present before the court in a personal capacity, rather was there to represent a political party. Adding to this, Justice Akhtar said that the lawyer’s power of attorney was also not filed in a personal capacity, adding that the government’s stance was relayed to the court by its staff through a statement shared from the PML-N’s Twitter account. Sheikh questioned if he should write an article if he cannot argue in front of the court. He claimed he had not taken any fees from the PML-N. The chief justice instructed him to provide a written submission which the court would review. The PML-N lawyer said he could not “embarrass” himself any longer”. Earlier during the hearing, the SC directed the defence secretary to submit a classified report to explain reasons why the armed forces are not available to perform security duties in general elections of provincial assemblies. CJPBandial also asked Defence Secretary Lieutenant General Rahmood-ul-Zaman to consider other forces like the Pakistan Air Force, Navy and Rangers if the armed forces were not available. “These have the same respect as the Pakistan Army,” the CJP said. He also asked whether reserved army officials could be called for elections duty. Earlier, the defence secretary requested to allow in-camera briefing on this matter. The bench, however, asked him to submit a written answer in a sealed envelope first. It reassured him that the envelope would be returned as it was after the bench went through it. Justice Ahsan said the court understood sensitive matters and did not want them to be public. He stated that the court did not want to create issues for national security officials or the public.
Pakistan Tehreek-e-Insaf (PTI) lawyer Ali Zafar said that he did not even want to review the sensitive information, as it was not necessary to see the security issues in this case. Justice Bandial commented that if the entire army was too busy to provide safety for the polls, then help could be taken from the navy and the airforce. He added that the Election Commission of Pakistan (PTI) said 50% of the polling stations were safe. “Not every unit or department in the army is at war,” he remarked and said that the court would do what is done in an open court and hear anything “sensitive” in the chambers. He questioned how many security personnel were needed, to which the Attorney General for Pakistan (AGP) Mansoor Awan said everything was on record. Awan added that the ECP had given six reasons for its decision to delay the polls. The defence secretary came to the rostrum and was asked to give the overall situation by the chief justice. The CJP clarified that they wanted details about Punjab and questioned if the security situation in the province was serious. The defence secretary replied that the security situation in Punjab was indeed serious and that he could not divulge details in an open
court as he did not want the information to reach the enemy.
The court then called PTI lawyer Ali Zafar to the rostrum and asked for his position on the chamber hearings.
The lawyer said that the ECP claimed that if they were given the security they could conduct elections. He added that security personnel could be made available for one day.
The CJP questioned who would provide the security personnel and how everything would be fixed by the ECP’s given date of October 8.
The PTI’s counsel stated that retired people could be hired and highlighted the existence of a reserved force present for certain circumstances which could be summoned by the defence secretary. To this, the secretary said that there was a procedure for calling the reserve forces.
The CJP stated that a large number of troops were also stationed at the borders and the election duty did not require combat personnel.
Regarding the financial requirement, the chief justice again suggested the additional finance secretary cut non-development expenditures.
PTI leader Asad Umar stated that Rs20 billion could be cut from the development budget as the government had allocated Rs700 billion budget wherein they only spent Rs229 billion.
The Supreme Court resumed hearing the PTI petition against the ECP decision to postpone polls in Punjab till October 08.
Attorney General for Pakistan (AGP) Mansoor Awan, ECP lawyers Irfan Qadir and Sajeel Swati, PTI counsel Ali Zafar and Pakistan Peoples Party (PPP) counsel Farooq Naek were present in the apex court.
Secretaries of finance and interior ministries were also present.
As the proceedings commenced, Naek came to the rostrum and was asked by CJP Bandial if the PPP had concluded its boycott against the court hearings, to which the lawyer stated that the party had not boycotted the hearing.
Justice Muneeb Akhtar questioned how the party could boycott the hearing and simultaneously attend it. He continued that for the past two days, the media was reporting that political parties had no confidence on the bench.
“How can you present your arguments if you don’t have confidence in us?” he asked, adding that the PPP counsel would only be heard if he withdrew the statement issued by the coalition leaders last week.
He also expressed displeasure at the language of the statement.
Justice Bandial asked Naek if he wanted to become a part of the proceedings, to which Naek said yes and reiterated that the PPP did not boycott the hearing.
The CJP said that the media had reported otherwise, whereas Naek stated that his party had reservations about the maintainability of the PTI petition.
Justice Bandial still maintained that Naek confirmed in writing that he had not boycotted the hearing.
The CJP then asked the AGP about the directions he had received. Awan replied that the incumbent government could not boycott the proceedings.
AGP Awan iterated that the PTI petition was based on the apex court’s March 1 verdict, wherein the court instructed the president to select a date for elections in Punjab and the governor to pick a date for polls in Khyber-Pakhtunkhwa (K-P).
He added that the K-P governor did not select a date until the PTI petition was filed.
The chief justice stated that the petition asked how the electoral watchdog could change the date to October 8 for the elections, adding that the law gave no one the authority to delay poll dates, except for the court.
He remarked that in 1988 the elections were postponed on court orders as the court had issued its verdict based on “ground realities”.
Bandial maintained that the March 1 verdict of the SC had already been executed.
Justice Ijazul Ahsan observed that the existent matter under consideration for the hearing was the ECP’s decision to postpone elections, as the commission was bound to follow court orders.
The attorney general, on the other hand, stated that during the initial suo motu hearings regarding the elections, a nine-member bench oversaw the proceedings. He continued that the court orders came out on February 21 and included dissenting notes from two judges, who had dismissed the case in the first hearing.
Justice Bandial, however, stated that only one judge had dismissed the proceedings as Justice Athar Minallah did not mention rejecting the case in his disagreement note.
The AGP contended that Justice Yahya Afridi had agreed with Justice Minallah and Justice Bandial said that the court “understood Awan’s stance”.
Justice Akhtar stated that on February 27, a nine-member bench asked the CJP for reconstituting the bench. Justice Ahsan added that the reconstituted bench then consisted of five members, which the AGP agreed to.
Justice Bandial clarified that he was not obligated to select the prior members and highlighted that the order the AGP was speaking about was a minority judgement.
The AGP argued that an order of the court was not issued on March 1 to which Justice Bandial asked if Awan believed that a five-member bench was never constituted.
“Harmony among judges is very important for Supreme Court. Judges have a lot of dealings with each other. Judicial proceedings are public, but the consultation of judges is not,” the CJP said.
He continued that the detailed dissenting note did not include the point of reconstitution of the bench, however, the AGP argued that according to the note, the reconstitution of the bench was an administrative measure.
The AGP furthered that according to the note, Justice Ijazul Ahsan and Justice Mazahir Naqvi excused themselves from the hearing. The CJP replied that according to the note, four judges separated themselves from the bench.
“A better way would have been to write that four judges were removed from the bench,” Chief Justice Bandial said, adding that in the decision of the nine-member bench, it was not written anywhere about who was voluntarily resigning.
He continued that there was no provision that a judge could not be removed from the bench, adding that when the court ordered the reconstitution of a bench, it did not mean that other judges were being removed.
Justice Ahsan said that forming a new bench was a “judicial directive and not an administrative one”.
The attorney general contended that the opinion of Justices Jamal Khan Mandokhail and Mansoor Ali Shah could not be separated. Justice Akhtar answered by quoting Justice Afridi’s statement which said he left his inclusion in the bench to the CJP’s discretion.
He highlighted that the absence of the two judges was not mentioned during the two-day suo motu hearing by the five-member bench.
The CJP maintained that a new bench was formed, and the hearing was initiated again, adding that it was stated in a footnote that the opinion of the two judges was not part of the decision record. He said that the AGP had not succeeded in convincing the court to separate the judges who earlier heard the case from the present bench.
The attorney general brought to light a circular from the SC registrar’s office which was in response to a judgement issued by Justice Qazi Faez Isa and Justice Khan on March 29. In the 12-page order, the judges called for the postponement of the suo motu case until amendments were made to SC Rules, 1980 pertaining to the CJP’s abilities to form benches.
However, in a circular issued on March 30, the CJP disregarded the judgement stating that the “unilateral assumption of judicial power in such a manner” was a violation of rules.
Referring to the circular during the hearing, the AGP argued that a judicial order or judgment could not be overruled by an administrative circular. The CJP, however, maintained that the circular did not “overrule any decisions”.
He continued that the circular “issued administrative instructions for the judgement”.
He mentioned another circular that halted proceedings for cases under Article 184(3) of the Constitution and explained that the circular did not disregard the decision of the five-member bench. He added that there were no clear directives in Justice Isa’s order.
The AGP protested that rules concerning petitions were in Article 184(3) of the Constitution and there was a five-member SC verdict available too on the mechanism of suo motu cases.
“In the verdict, it was written that it would be better to stop the hearing of cases on 184(3). In the March 29 verdict, there was no directive, but a wish was expressed. Decisions on cases must be taken to favour the public, not by adjourning the hearing,” CJP Bandial said.
The attorney general also requested that the court adjourn the hearing until rules for petitions under Article 184(3) were finalised. To this, Justice Ahsan questioned how proceedings could be delayed when rules for constitutional petitions already existed.
Awan said during the current case, a court order could not be dismissed through a circular.
The CJP said that the court always took caution when it came to taking a suo motu notice, recalling that the first such notice this year was taken when the SC received requests from the speakers of two assemblies.
The CJP disagreed with the argument that this case was different from other cases under Article 184(3) of the Constitution. He inquired how the court could stop action on cases whose rules had already been established.
Bandial emphasised that the procedure for jurisdiction under Article 184(3) was very strict.
He highlighted that the judge who signed Justice Isa’s order had recused himself from the bench. And questioned how it was possible for Justice Isa, who authored the order, to hear the case.
The CJP suggested that the government could request the formation of a larger bench, not a full court. He also said that he met senior judges in the past three days.
The CJP permitted Awan to present arguments for the constitution of a larger bench and the AGP requested that a full court bench be constituted, comprising judges who were not included in the nine-member bench in the suo motu hearings.
“Let the remaining two judges decide on the 3-2 and 4-3 verdicts,” he said.
The chief justice commented that one decision was given by a majority bench while the other was given by a minority bench comprising of two members.
He emphasised that the primary purpose of the hearing was to confirm a fair trial, and specified that any decision taken without hearing all parties would have a restricted extent.
The CJP emphasised that outcomes after a detailed hearing of the case were necessary. Justice Ahsan observed that two benches had conducted separate proceedings in the case.
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