Election on same date: SC cannot go back on earlier verdict, says CJP

ISLAMABAD: Chief Justice of Pakistan (CJP) Umar Ata Bandial insisted on Wednesday that elections could not be held uniformly across the country, observing that the Supreme Court could not go back on its earlier verdict ordering polls to the Punjab Assembly to be held on May 14.

A day earlier, top intelligence officials briefed the apex court on the security situation. Referring to that briefing, CJP Bandial noted that the director general miltary operations briefed the bench while director general Inter-Services Intelligence (ISI) and defence secretary were also present.

“[While] the briefing of the military authorities was very impressive and shed light on the actual situation [but] when the case was being heard, no one came to give us a briefing. A briefing was given [only] after the Supreme Court had announced its verdict. Now the decision, has been announced, we cannot go back. Now, we must move forward,” CJP Bandial said.

During the hearing, the chief justice termed the Ministry of Defence's petition seeking elections across the country on the same day "unmaintainable".

A three-member bench, comprising the CJP, Justice Ijaz ul Ahsan, and Justice Munib Akhtar is hearing the petition.

This is the same bench that gave the April 4 ruling, directing the Election Commission of Pakistan (ECP) to hold elections in Punjab on May 14.

On Tuesday, the Ministry of Defence moved the top court seeking elections across the country on the same date and requested the court to withdraw its earlier ruling.

Meanwhile, two more pleas were filed in the apex court seeking polls across the country altogether. One of the new pleas was filed by a citizen Mohammad Arif, while the other one has been registered by Advocate Shah Khawar on Sardar Kashif Khan's behalf.

The court is hearing all the pleas together.

Parliament's role

CJP Bandial began today’s hearing with the recitation of a verse from the Quran and prayed that the bench gives the "right verdict".

“The matter is getting extended. Did the government give the job of the executive to the Parliament or not?” CJP Bandial asked Attorney General for Pakistan (AGP) Mansoor Usman Awan. He also directed the AGP to read the report submitted by the Ministry of Finance.

Justice Akhtar wondered whether the government has ever failed to secure the Parliament’s approval on a supplementary grant.

The AGP told the bench that in 2013, deduction motions were approved. He then added that in the current scenario, there was time to seek approval for the issuance of the funds.

At this, Justice Akhtar told the AGP that the finance ministry has repeatedly said the approval for the supplementary grant is taken later. He added that the finance ministry had cited Article 84 of the Constitution.

AGP Awan informed the judge that the National Assembly had passed a resolution against releasing the funds.

“Are you saying your case is that the government is serious about executing its responsibilities but the parliament has forbidden it?” asked Justice Akhtar. He added that the prime minister had to take the majority of the Parliament into confidence for the approval of the funds for the elections.

“If the funds are not provided for the elections, there may be serious consequences,” warned CJP Bandial on this point. He also hoped that the government would respond positively to the provision of funds for the constitutional process.

The CJP then stated that the bench was briefed on the security situation and wondered why the ECP believes that the situation is much worse than in the past.

“In the past elections were held during terrorism. Elections were also held in the year that Mohtarma Benazir Bhutto was martyred,” said CJP Bandial.

At this point, Justice Akhtar remarked that the prime minister needs to have the support of the majority of the assembly.

“Attorney general, please try to understand the situation is very serious,” he added.

The CJP then told the AGP that he has understood the point of view of the bench, adding that before this, there is no example of sending administrative affairs to the Parliament.

“Election expenses are necessary, not insignificant,” remarked CJP Bandial.

“Who will give the guarantee that the situation will be peaceful on October 8? The Ministry of Defence’s response is not satisfactory,” remarked CJP Bandial.

The top judge also questioned the ECP’s stance on elections and stated that it is leading to multiple questions.

“The basis of the Election Commission's observation is non-provision of security [but] terrorism has been present since 1992,” remarked CJP Bandial. He added that polls were held in 1987, 1991, 2002, 2008, 2013 and 2018.

“What is the unique danger this time that elections cannot be held?” asked CJP Bandial.

AGP Awan told the bench that last time, all the security forces had performed their duties together but now elections will be held separately in two provinces.

“The defence ministry has also made a guess. The government cannot just run on guesses,” remarked CJP Bandial.

Meanwhile, Justice Ahsan observed that polls were held on time in the United Kingdom despite the country being in a virtual war. He also wondered whether the Constitution mandates that polls be held a year after the dissolution of the assembly.

The AGP responded that all-out efforts were being made so that the specified targets were met during security operations. He added that no one expected that the assemblies would be dissolved before the completion of their tenure.

Justice Akhtar responded that the assembly was dissolved last year and had the court not taken notice, the lower house would not have been restored. 

While Justice Ahsan interjected and asked which article gave the court the right to delay elections till next year. He added that the ECP had asked for funds and security for holding elections.

While CJP Bandial stated that hearings in the case began on March 27 and since then, there has been “confusion in mathematics”.

He added that the ratio of the verdict was debated but the Supreme Court was never informed about all the reasons that led to the delay in polls.

Justice Ahsan then noted that the orders related to funds were being “sent from one institution to another.”

To this, the AGP replied: “I understand the message you are trying to convey.”

Justice Ahsan then asked if there was any guarantee that the elections would be conducted on October 8.

The AGP replied that the army has started operations so that the elections are held as per schedule.

In response, Justice Akhtar inquired why the federal government was not using the authority given to it under Article 245.

“Is the Constitution not supreme?” he asked.

He then lauded the armed forces for having sacrificed their lives for the country, adding that everyone should be grateful to the Pakistan Army.

'Defence ministry's request strange'

The chief justice then remarked that ECP and the defence ministry's stance were not grounds for withdrawing the apex court’s earlier decision on Punjab polls.

“The electoral body had earlier said that the elections would be conducted if they were given resources but now it says anarchy will spread in the country,” remarked CJP Bandial.

The CJP remarked that the commission now wanted to reopen the entire case and the defence ministry’s request was a strange one, to begin with.

“Can the Ministry of Defence request to hold elections together?” he asked, adding that the request was “unmaintainable”.

Following this declaration of CJP Bandial, the AGP requested the court for respite till negotiations are held between political parties.

He said he had met with Pakistan Peoples Party (PPP) Chairman Bilawal Bhutto-Zardari yesterday and Prime Minister Shehbaz Sharif today.

“We are trying to initiate a political dialogue in the country,” he informed the court, adding that all government parties except one were willing to negotiate with the Pakistan Tehreek-e-Insaf.

Expressing hope for starting a political dialogue in the country, the AGP said: “Bilawal Bhutto will meet Maulana Fazlur Rehman today to convince him for negotiations. If things get sorted, maybe there will be no need for excessive security for the elections.”

All political parties are willing to negotiate, he reiterated, adding that the Jamaat-e-Islami (JI) chief had also met PM Shehbaz and PTI Chairman Imran Khan, and both sides have formed committees for negotiations.

“If the court gives some respite, the matter can be resolved,” he said.

Hearing this, the CJP remarked: “the AGP’s words carry weight. The frozen political system is starting to work.”

He then said that May 14 — the date set by the SC for conducting elections — was nearing.

“If the political parties come together, the court can make room for them and change the date of elections. If not, the elections will be conducted on May 14” the CJP said, adding: “This matter should not be prolonged.”

The AGP reassured the apex court judges that all parties — including JI — want to solve problems through “political means”.

‘Elected govts may influence elections’

Following the AGP’s remarks, the CJP turned his attention to the petition filed by Advocate Shah Khawar.

Khawar came to the rostrum with a request to hold elections simultaneously across the country.

He contended that for one reason or the other, the court’s decision could not be implemented.

“It is necessary to implement the court decision, people are confused and tense,” he said, adding that he had filed the petition to get people out of a state of agitation.

Khawar told the government that the elections should be held on the same date countrywide and expressed fear that there would be a lot of problems if polls are held separately.

“Elected governments in the province will influence the elections,” said Khawar.

On this point, CJP Bandial wondered why AGP Awan did not raise these points during the hearing. “We will ask AGP who stopped him from adopting this stance,” asked CJP Bandial.

Khawar then intervened and told the bench that an “ideal situation” will emerge if there is consensus between political parties.

CJP Bandial agreed and remarked that political parties should be accommodating and “nothing can be done unilaterally”. He added that the 90-day limit for polls has already passed.

The top judge stated that the court had asked the government for assurances on talks between political parties. He added that the government for the first time had given a positive response.

“A question also arises on the continuation of caretaker governments for more than 90 days,” said CJP Bandial.

He then asked PTI lawyer Faisal Chaudhry whether the Imran-led party was willing to hold talks.

Chaudhry informed the bench that the day Khan met JI chief Siraj ul Haq, PTI leader Ali Zaidi was arrested.

The CJP then asked Chaudhry if PTI had formed a committee for the talks, while Justice Ahsan asked Chaudhry to take directives from his client.

On this point, Advocate Khawar suggested notices be issued to JI and all political parties.

The bench then issued notices to the political parties while CJP Bandial remarked that they will try to wrap up the case after Eid ul Fitr as soon as possible.

“If there is consensus on talks, then it will be okay, or else we will order elections for May 14,” remarked the CJP.

The Supreme Court while issuing the orders directed print and electronic media to inform JI and all political parties to appear in court tomorrow (Thursday).

Defence ministry's plea

A day earlier, the Ministry of Defence moved the apex court stating “[...] the instant application may be granted, the order dated 4-4-2023 passed in C.P. No. 5/2023 may kindly be recalled with the directions that the general elections to the National and all Provincial Assemblies be held together, upon completion of the term of the National and the other two Provincial Assemblies i.e. of Sindh and Balochistan,” the ministry’s plea stated.

The tenure of the National Assembly and the legislature of two other provinces — Sindh and Balochistan — will end later this year and the federal government wants the polls to take place then, not in May, as directed by the Supreme Court on April 4.

The defence ministry had also submitted a report alongside the application in court, which highlighted the need of holding the elections on the same day in view of the heightened security situation in the country. It also said that the armed forces would be able to carry out election duties by early October.

“Due to the prevalent security situation and counter-terrorism operations being carried out in KP and Balochistan as well as the intelligence-based operations in Punjab and Sindh, the armed forces, Rangers, Frontier Constabulary and other forces are not logistically available to be repositioned and re-posted for providing election security, twice in a span of six months,” the report read.

“Significant time is required to prepare the members of the armed forces for the election duty, given much of the force has been actively engaged in operations for a considerable period of time,” the application said, adding the security situation in Punjab and Sindh has been stable in the light of the efforts of the ongoing operations in KP and Balochistan, respectively.

Chronology of election delay case

In the April 4 order, the top court ruled that the ECP's decision to postpone polls to the Punjab Assembly till October 8 was “unconstitutional” and fixed May 14 as the date for polls in Punjab. 

“The impugned order dated 22.03.2023 made by the ECP is declared to be unconstitutional, without lawful authority or jurisdiction, void ab-initio, of no legal effect and is hereby quashed,” the ruling said.

The ECP on March 22 announced that the elections in Punjab would be held on October 8. The date was earlier set for April 30, in consultation with President Arif Alvi, but was later extended in view of the security situation and non-provision of funds from the government. 

But despite the court’s orders, the government did not budge and got a resolution passed through parliament against the verdict, clearly stating that it would not provide funds to the ECP for polls.

Following the government’s move, the apex court directed the State Bank of Pakistan (SBP) to release a total of Rs21 billion to the election commission for holding polls, but even after the deadline passed on April 17, the central bank did not release the funds. 

In a session of the National Assembly’s Standing Committee on Finance and Revenue a day earlier, SBP Acting Governor Sima Kamil said the central bank had allocated funds — on the SC’s orders — for the polls but lacked the authority to release them.

Meanwhile, the electoral body, in its report submitted before a three-member bench of the Supreme Court a day earlier, reiterated its original stance of holding elections in Punjab on October 8, 2023.

It warned the apex court that if the commission’s itinerary was not followed, it might lead to anarchy and chaos in the country. 

“The responsibility of the Election Commission of Pakistan is not only to conduct Elections but that such elections should be free, fair and transparent, so that the voters can cast their votes freely, without fear and peacefully. 

"It is reiterated that the poll date of October 8, 2023, as announced earlier is in keeping with the ground realities and it is also believed that if this itinerary is not followed, it may lead to anarchy and chaos in our country, the responsibility of which ECP cannot withstand,” the report read.