Daily Times

 The Supreme Court on Wednesday disposed of the plea filed by the Defence Ministry to hold general elections across Pakistan simultaneously.

A three-member SC bench comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijaz Ul Ahsan and Justice Munib Akhtar heard the petition.

The court in its written order stated that there were a number of miscellaneous matters before the court in the shape of various CMAs.

“We first take up CMA Nos. 2770-2772/2023 since they relate to the compliance required by the order dated 14.04.2023, for the release of Rs 21 billion to the Election Commission of Pakistan for the holding of general elections to the Punjab and Khyber Pakhtunkhwa assemblies.

“CMA 2771/2023 was a report filed by the State Bank of Pakistan stating that a sum of Rs 21 billion from Account No. I of the Federal Consolidated Fund (“Fund”) has been allocated for purposes of the aforementioned general elections. The Commission has, however, filed a report (CMA 2770/2023) stating that the said funds have not yet been made available to it. These CMAs were taken on record.

“The Finance Division has also filed a report (CMA 2772/2023) in terms of the Order. The report sought to justify why the funds had not been made available. Briefly stated, it was reported that the matter of providing the funds was placed before the Federal Cabinet which, at its meeting held on 17.04.2023, decided that a demand for the authorization and release thereof be sent to the National Assembly for its consideration in terms of Article 82(2) read with Article 84 of the Constitution. The following motion was tabled before the National Assembly the same day. The Finance Division had reported that this motion was rejected by the National Assembly and the necessary funds could not therefore be made available to the Commission.

“The first point to note was that, as set out in the Order, it was specifically queried from the team from the Finance Division and confirmed by them, that Article 84 allowed and enabled the Federal Government to make expenditures from the Fund for, inter alia, “expenditure upon some new service not included in the Annual Budget Statement” during any financial year. For such expenditure the Federal Government obtained ex post facto authorization from the National Assembly in the form of a Supplementary Budget Statement. The team from Finance Division also stated that the normal practice was for the Supplementary Budget Statement for the current financial year (as also any previous years) to be laid before the National Assembly along with the Annual Budget Statement for the succeeding financial year, with both then to be approved.

There can therefore be no doubt, as noted in the Order, that the Federal Cabinet all along itself had the authority and power to authorize the expenditure of Rs. 21 billion from the Fund in order to enable the Federation to perform its constitutional obligations in relation to the general elections.

“The Attorney General, in our view quite correctly and properly, did not attempt to seriously dispute the position as just stated. However, the reason why in the present case the matter was first referred to the National Assembly was sought to be explained. The Attorney General submitted that at an earlier date, the National Assembly had passed a resolution expressing its disapproval of the release of any funds for the holding of the general elections. It was this resolution that created a certain doubt and uncertainty, and so the Federal Cabinet decided to first refer to the National Assembly. On a query from the Court the learned Attorney General stated that the earlier resolution was not in terms of a specific request for a grant of funds for a financial measure.

With respect, we were not satisfied that the earlier resolution stood in the way of the Federal Cabinet exercising its constitutional power under Article 84. The reasons for this are set out below. To the extent therefore that the report of the Finance Division concludes, or proceeds on the basis that, the Federal Government did not itself have the requisite constitutional authority and power at all times to authorize the expenditure of Rs 21 billion for the general elections, it cannot be accepted.

“The effect of the Federal Cabinet’s decision to refer the matter to the National Assembly in terms as noted above, and for Demand No. 64A to be rejected when voted upon by that House may now be considered. In terms of the system of parliamentary democracy envisaged by the Constitution the Government of the day must command the confidence of the majority of the National Assembly at all times.

Furthermore, given that the office of Prime Minister has primacy (who is declared by Article 91(1) to be the chief executive of the Federation), this also means that the Prime Minister must enjoy the confidence of the majority of the National Assembly at all times. It followed from the foregoing (and this was an important constitutional convention) that the Government of the day must be able to secure the passage of all financial measures that it submits before the National Assembly.

This would be certainly true for a financial measure of constitutional importance, i.e., one that seeks the release of funds for the holding of general elections to two Provincial Assemblies. When viewed from this perspective the rejection of Demand No. 64A has serious constitutional implications. One possibility was that the Government (and also, since the Federal Cabinet was appointed on the advice of, and is headed by, him, the Prime Minister) had lost the confidence of the majority of the members of the National Assembly. The Attorney General categorically stated that this was not so.

The Federal Cabinet and the Prime Minister have, and had, at all times the confidence of the majority of the National Assembly. For present purposes, we accept this statement made by the Attorney General. The other possibility then was that the putative rejection of Demand No. 64A was to be regarded as anomalous, and the resulting situation could be rapidly rectified. The Attorney General fully appreciated the serious constitutional consequences that would flow, were the first possibility to reflect the correct position.

Furthermore, any future to and fro of this matter between the executive and legislative branches would not advance or serve any constitutional purpose. There would be a serious breach of constitutional duty and obligation.

“It is also to be emphasized that the orders of this Court seek only to enforce and effectuate binding constitutional obligations. A disobedience and defiance of the orders of the Court can itself have serious consequences. The Attorney General was therefore directed to draw the attention of the Federal Cabinet and the Prime Minister to the foregoing so that the matter is remedied at the earliest. The Court required that appropriate remedial measures be taken in full measure not later than 27.04.2023 and, in particular, by that date the sum of Rs 21 billion be provided, in immediately available and realizable funds, to the Commission for the holding of the general elections to the Punjab and KPK Assemblies. CMA 2772/2023 was, for the time being, dealt with in the foregoing terms.

“CMA 2773/2023 was filed by the Federal Government. It seeks to place on record a report, prepared by the Ministry of Defence, on the security situation in the country at the present time and for the next few months This CMA was moved under Order 33, R. 6 SCR and the relief sought was for the order dated 04.04.2023, whereby CP 5/2023 was finally disposed of, be recalled.

It was pointed out to the Attorney General that such an application could not be entertained nor relief granted, as CP 5/2023 had been decided by final judgment. CMA 2773/2023 was therefore disposed of as not maintainable. “The last matter was CMA 2769/2023 which purports to be a representation filed by the Commission. It seeks, in essence, for the Court to restore the date for the general elections to be 08.10.2023, which was impugned before the Court in CP 5/2023 and set aside by the order dated 04.04.2023.

The Commission seeks restoration of the said date on essentially security grounds, which in large measure overlap the concerns expressed in the report of the Ministry of Defence appended to CMA 2773/2023. In our view the Commission seeks, in the guise of a representation, to re-agitate matters that were before the Court when CP 5/2023 was heard and decided, and in which two fully instructed learned counsel were permitted to make submissions on its behalf. It was impermissible to attempt to so reopen issues and questions that already stand finally decided. The representation was not maintainable and CMA 2769/2023 was disposed of accordingly.”

At the outset of hearing, Attorney General for Pakistan (AGP) Mansoor Usman Awan was called to the rostrum and asked to read the finance ministry’s report out loud in the courtroom.

CJP Bandial remarked that the government had said that the funds required for conducting polls would be issued via a supplementary grant. “On the contrary, the matter was sent to parliament,” he remarked. The AGP told the court that the NA Standing Committee on Finance and Revenue had referred the matter to the cabinet and parliament. At this, Justice Akhtar remarked that a majority of the committee’s members were part of the government. He also asked how the government could be barred from approving a grant. He said that the prime minister should have a majority in the NA and that it was mandatory to have a majority in “financial matters”.

He went on to say that the Constitution gave the government the right to issue a supplementary grant and questioned how the assembly could intervene. Taking post-facto approval of the grant would have been “risky”, the AGP replied. He said that in the current case, there was sufficient time to seek the NA’s approval before issuing the supplementary grant. “The finance ministry’s team said, again and again, that approval for the supplementary grant could be sought later,” Justice Akhtar said, adding that the ministry had referenced Article 84 of the Constitution. He again wondered how the supplementary grant could be rejected by the NA.

“Are you aware of the consequences of rejecting a supplementary budget? First, answer this question then [we] will move forward,” Justice Akhtar said. AGP Awan stated that the right to approve a supplementary grant lay with parliament. He said that the NA had already expressed its opinion regarding the matter at hand through a resolution. “If the government was serious, could it not have gotten the supplementary grant approved?” Justice Akhtar asked. The AGP replied that if post-facto approval was not granted, then the expenses would be classified as “unconstitutional”.

“It is imperative for the premier to have a majority in the NA. AGP sahab try to understand, the matter is very serious,” Justice Akhtar said. CJP Bandial remarked that there was no previous instance of referring administrative matters to the relevant standing committee. He added that the funds spent on election were a “necessary” expenditure. “It is expected that the government will review its decision,” he said, adding that the government should either decide or again refer the matter to the NA. The AGP was told to inform the government regarding the court’s directives.

During the hearing, the chief justice also observed that the electoral watchdog had stated that polls in Punjab and KP could not be conducted till October. He further noted that the ECP had called for holding elections simultaneously in the country and had cited the security situation. CJP Bandial said that several questions arose from the ECP’s stance. “Terrorism is ongoing in the country since 1992,” he said, noting that polls had been held in the country despite this. He observed that the situation was particularly sensitive in 2008, adding that ex-prime minister Benazir Bhutto was assassinated in 2007. He questioned what new danger there was for not holding polls in the country. The AGP replied and said that in the past security forces had performed their duties at one time. “Now, elections will take place in two provinces separately,” he said.

“What guarantee is there that the situation will improve by October 8?” the CJP asked, adding that the defence ministry had also made an estimate. “The government cannot function on mere estimates,” he said. The SC then sought another response from the government regarding the provision of funds for holding elections in Punjab and KP. “Failure to provide funds could have serious consequences,” the CJP remarked. Justice Ahsan remarked that timely elections were held in Britain during a time of war. Polls were held in Britain even while bomb blasts, he said. He asked where the government had the right to delay polls.

Justice Ahsan observed that the top court’s directives regarding funds for polls were being sent from one place to another. He also asked what guarantee there was that elections would be held on October 8. The AGP replied and said that security forces were responsible for dealing with external threats. He said that since 2001, security forces were busy at the country’s borders. At one point, Justice Akhtar asked whether the army came to the civil government’s aid under Article 245 of the Constitution. Article 245 of the Constitution says, “The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so.”

It further says, “The validity of any direction issued by the Federal Government under clause (1), shall not be called in question in any Court.” The AGP responded that fundamental rights are suspended under Article 245. Justice Akhtar then asked whether fundamental rights were suspended during the 2008 polls. He also asked why the government was not exercising its powers under Article 245. “Is the Constitution not supreme?” he asked. The chief justice observed that top court proceedings regarding the matter at hand began on March 27 and wrapped up on April 4. “First it was a matter of 4-3 and then of a full court,” he remarked, adding that while there was a “boycott” of proceedings, no one raised the issue of security.

The AGP said that the director general of military operations gave a briefing at his request. CJP Bandial remarked that the Inter-Services Intelligence (ISI) chief and the defence secretary were also present in the briefing. He said that the officials were told that this matter was not raised during the hearing. “Everyone was told that [the matter] has been decided and we cannot go back on it,” he said. CJP Bandial said the requests by the ECP and the defence ministry were not sufficient to withdraw the directives. He said that the ECP had initially said that it would conduct polls if it was provided with funds. “Now, they are saying anarchy will spread in the country,” he said, adding that the electoral watchdog wished to open the whole case once again. Commenting on the report submitted by the defence ministry, the CJP said that it had a “strange” stance. “Can the ministry of defence make a request to hold elections simultaneously in the country?” he asked, terming the ministry’s plea to be “not maintainable”.

AGP Awan said Foreign Minister Bilawal Bhutto-Zardari had called on Prime Minister Shehbaz Sharif in Islamabad yesterday, adding that efforts were afoot to initiate political dialogue. All ruling parties, apart from one, are willing to talk with the PTI, he said. He added that Bilawal would meet with the Jamiat Ulema-i-Islam-Fazl chief Maulana Fazlur Rehman in this regard today to convince him of negotiations. He said that if matters were resolved then there might not be a need for so much security. Awan added that the matter could be resolved if the court gave some time. CJP Bandial said that the AGP’s stance had some weight. He said that the court could “make some room” if all political parties were united in their stance. The chief justice said that the matters could not be delayed further since the Eidul Fitr holidays were near, adding that his fellow judges thought that the five days were enough to settle matters.

Advocate Shah Khawar pointed out here that the apex court’s orders were not implemented for one reason or the other, adding that their implementation was necessary. “People are confused and tense. The application is filed to rid the people of their agitated state. The entire country should have elections at the same time. Many complications will arise if elections are held separately,” he said, adding that provincial governments would influence the polls. Here, CJP Bandial questioned him why the AGP had not raised this point instead of focusing on the matter of the 4-3 verdict. “We will ask the AGP who prevented him from taking this stance,” the chief justice said to which Khawar said the conditions could still be ideal if political parties united. “If it is about the negotiations then you can’t be stubborn about Oct 8. Nothing can be unilateral, political parties will have to have a bigger heart. The 90-day period [for holding elections] has passed on April 14,” the chief justice said, adding that it was constitutionally mandated to hold elections within 90 days of an assembly’s dissolution. “You think this is a matter of political justice in which the decision will be made by the people. You are suggesting that the political parties should negotiate. The government did not respond when the court asked for assurance. The government spoke positively for the first time,” CJP Bandial observed and said the court was issuing a notice to political parties for Thursday.

The chief justice pointed out that a question was also raised on the continued tenure of caretaker governments beyond 90 days. Meanwhile, AGP Awan requested the court to provide respite to political parties. The court subsequently called Faisal Chaudhry to the rostrum and he was asked whether the PTI was willing to negotiate to which he replied: “Siraj ul Haq came to Zaman Park and the next day our party’s Sindh president (Ali Zaidi) was arrested.” The chief justice remarked that a “level playing field” for the polls could be achieved if all political parties were satisfied on an election date. “Look at the pain and anxiety caused to the nation,” he added. Chaudhry responded that the nation was looking towards the apex court and had high hopes for it.

Chaudhry said that as per media reports, the PTI had formed a three-member committee. “The interior minister threatens the court after every hour. The interior minister says: ‘Elections will not be held on May 14 no matter what anyone does,'” he said, to which the chief justice said that the order for polls on May 14 would be implemented if political consensus was achieved. “Do you want clashes on the streets? If the political process does not progress then there may be a clash in the election,” he said. Separately, Justice Ahsan said that both parties in the matter would have to take steps to “reduce the political temperature” and ordered that the court be briefed after taking instructions from party leaders, adding that it was possible the court summoned the leadership of all political parties. The court dismissed the defence ministry’s plea as being inadmissible with the chief justice saying that the media was ordered to run the news that the hearing would take place on Thursday and senior political leaders of parties should also appear.

The chief justice said that if Eidul Fitr fell on Saturday then the court would hold a hearing on Friday. “The main issue is that we have given the date of May 14, if there is a solution then better, otherwise the date is already fixed,” he remarked. The hearing was subsequently adjourned to 11:30am on Thursday with the leadership of political parties summoned as well.