The Supreme Court has reserved its verdict on the PTI petition challenging the ECP decision to delay elections in Punjab and Khyber Pakhtunkhwa after a marathon hearing on Monday, reported 24NewsHD TV channel.
Chief Justice of Pakistan Justice Umar Ata Bandial announced reserving the decision, saying the apex court will pronounce its judgement on Tuesday (today).
Earlier, Justice Umar Ata Bandial remarked that the law does not allow anyone to defer elections, only the court can extend the poll date.
The chief justice expressed these remarks on Monday while hearing the PTI petition challenging the ECP decision to delay polls in Punjab and Khyber Pakhtunkhwa.
All the reports about boycott of the apex court proceedings proved wrong as the government lawyers participated in the hearing.
During the hearing, Chief Justice Bandial also remarked that it was the chief justice's prerogative to constitute a new bench.
A three-judge SC bench presided over by CJP Bandial and comprising Justice Ijaz-ul-Ahsan and Justice Munib Akhtar heard the case.
The original five-member larger bench constituted by the chief justice of Pakistan faced dissolution twice following the recusal first by Justice Aminuddin Khan and then by Justice Jamal Mandokhail.
Justice Mandokhail’s recusal came on Friday after Justice Aminuddin Khan withdrew himself from the bench saying that he was a signatory to an order issued by a different bench, proposing the postponement of all cases instituted under Article 184(3) of the Constitution
Justice Yahya Afridi and Justice Athar Minallah have already attached their dissenting notes, rejecting the suo motu notice of the case taken the CJP.
No boycott, all show up
All the reports about the boycott of the court proceedings were squashed as Attorney General of Pakistan (AGP) Mansoor Usman Awan, ECP lawyers Irfan Qadir and Sajeel Swati, PTI lawyer Ali Zafar, and PPP counsel Farooq H Naek were present in the courtroom as the hearing resumed on Monday.
Federal secretaries of finance and interior were also present after they were summoned by the court on last hearing.
At the outset of the hearing, Farooq Naek stood up from his seat and moved towards the rostrum when CJP Bandial asked him if PPP had ended its boycott against the court hearings to which the latter replied that he had not boycotted the proceedings.
Justice Akhtar inquired “How can you boycott on one hand and also attend the hearing on the other. For the last 48 hours, the media has been saying that political parties have expressed no confidence on the bench. How will you present your arguments if you don’t have confidence in us?” the judge asked.
The SC judge then declared that the court would only hear Farooq Naek if he withdrew the statement — jointly issued by coalition leaders. The judge also directed Farooq Naek to read out the joint statement and expressed displeasure over the language used in it.
Justice Bandial asked the PPP lawyer if he wanted to become a part of the proceedings, to which Farooq Naek replied in affirmative and said that “we never boycotted the hearing”.
“But something else was written in the newspapers,” Justice Bandial highlighted. Farooq Naek replied his party had reservations on the maintainability of the petition.
However, the CJP insisted that Farooq Naek confirms in writing that he had not boycotted the hearing.
Turning to the AGP, Justice Bandial inquired about the directions he had received, to which Mansoor Awan replied that the government worked under the Constitution and could not boycott the proceedings.
Govt's petition
Before the start of the hearing, the federal government submitted a miscellaneous petition seeking reconstitution of the bench and dismissal of the PTI petition in the light of what it said was a 4-3 majority order issued by the apex court on March 1.
The apex court, had in a 3-2 verdict, ruled on March 1 that elections in Khyber Pakhtunkhwa and Punjab should be held within 90 days.
But the government disagreed saying the verdict was 4-3.
Today’s hearing
At the outset of the haring, Justice Ahsan asked Attorney General for Pakistan Mansoor Awan how many judges signed the order of the court.
He replied that nine judges signed it.
Chief Justice Bandial remarked that it’s the CJP’s prerogative to form a new bench.
“Give us only one example in which the chief justice has been stopped from constituting a new bench,” the top judge asked.
The AGP cited a case in Peshawar in which the CJP was barred from constituting a bench of his own choice.
CJP Bandial remarked that the Peshawar case order was not the order of the court. “I have not come across a single example in which the chief justice was stopped from changing a bench,” he added.
The top judge remarked that the SC proceeding is always held in the public interest.
“It happens that judges have divergent views. But the constitution empowers the chief justice to constitute a bench,” the CHP remarked.
CJP says haven’t rejected the full court request
The attorney general said that the government requested for the full court twice but the court did not accept the request.
Chief Justice Bandial explained that he had only said that he would look into the full court matter later, but did not reject the plea. He, however, said that your (AGP’s) request should be of larger bench and not of full court.
The chief justice asked the AGP to prove in the decision of nine-member bench if any judge refused to sit in the bench. It’s the CJP’s authority to form the bench, he reiterated.
CJP Bandial said for the last three days, he has been consulting with the senior judges of the Supreme Court.
CJP rules out deferring court proceedings under 184/3
The AGP said that under 184/3, rules have been laid down regarding petitions. He said that the decision of a five-member bench regarding suo motu notice of the case is also available.
The Chief Justice said that it is written in the decision that it would be appropriate if the proceedings under 184/3 would be stopped.
He remarked that the public interest lies in it if the cases are decided, and not in their postponement.
The CJP remarked that in the decision, there is third category which relates to basic rights and basic rights relate to 184/3.
“Isn’t it a constitutional petition which has set rules,” the top judge asked.
The AGP replied in this case, basic rights have been mentioned.
Mr Awan, however, said that the current case could come in the third category of Justice Qazi Faez Isa.
Justice Ahsan didn’t agree saying if there are set rules for constitutional petition, how could they defer the proceedings.
He remarked that the actual matter before the court to consider is the ECP’s decision to postpone the election. He said that the commission is bound to follow the court order.
Only court can extend poll date: CJP
The chief justice remarked that law does not allow anyone to defer elections. Only the court could extend the election date, he said adding that in 1988, election date was extended on the court order.
CJP Bandial went on to say that the court issues order considering the ground realities.
Court says second SC bench consisted of five members
The AGP argued that in the first round, a nine-member bench heard the election case and the court order came on February 21. He said details of the dissenting notes of two judges have come to light. Two judges have already rejected the suo motu proceeding of the case on the first day.
However, the CJP interjected and said that only one judge had dismissed the proceedings. “Justice Athar Minallah had not mentioned rejecting the request in his dissenting note,” he said.
“Justice Yahya Afridi had agreed with Justice Minallah in his note,” the AGP argued to which Justice Bandial stated that the court had understood Awan’s stance.
The court asked how many members were involved in the bench in which Justice Mansoor and Justice Mandokhail wrote their dissenting notes.
It said that on Feb 27, the nine-member bench sent the matter to the chief justice, requesting him to reconstitute the bench.
When the bench was reconstituted, it was consisted of five members. Wasn’t it for the chief justice to include any five judges in the bench, the court asked?
AGP Awan said that he agrees with the court.
Justice Munib Akhtar remarked that if we accept the 4-3 verdict logic, the decision will go to the 9-member bench. He went on to say that the decision will either be of 9-member bench or 5-member bench.
CJP Bandial remarked that nowhere in the decision of the 9-member bench it has been written that who is refusing to hear the case voluntarily.
“If a judge is recused from the bench, the court writes down a judicial order. If the court orders reconstitution of the bench, it does not mean that a judge is detached from the hearing,” the CJP added.
The CJP clarified that he was not obligated to select the previous members and pointed out that the order the AGP was referring to was a minority judgement.
For his part, 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.
Full court rule out again; larger bench can be requested
CJP Bandial has again ruled out the constitution of a full court to hear the case, suggesting the government could instead request for a larger bench to hear the case.
Justice Bandial said he had discussed the matter with senior apex court judges in the past few days. He said the court had always taken caution when it came to taking 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 questioned how the court could stop action on cases whose rules had already been established and emphasised that the procedure for jurisdiction under Article 184(3) was very strict.
Justice Akhtar wondered over conflicting statements, as one side demanded a full court and the other side argued against holding a hearing at all. He asked the AGP to clarify whether a hearing could be held or not. He further commented that if the AGP’s argument was accepted, even a full court could not go ahead with proceedings.
The CJP pointed out that the judge who signed Justice Isa’s order had recused himself from the bench. He questioned how it was possible for Justice Isa, who authored the verdict, to hear the case. The CJP declared 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.
Addressing AGP Awan, the CJP said: “If you want to give arguments for a larger bench, then go ahead.”
Subsequently, the AGP requested the court that a bench be constituted — for hearing the PTI petition — comprising judges who were not included in the nine-member bench in the suo motu proceedings. “Let the remaining two judges decide on the 3-2 and 4-3 verdicts,” he added.
Election security issue
CJP Bandial inquired about the presence of the secretaries of finance and defence, to which the attorney general responded that the secretary of finance was present with a report.
The AGP told the court that the matter was sensitive and required an in-camera hearing to which the CJP directed Awan to submit the relevant files in court, saying the bench would analyse them. He remarked the matter concerning security was not just limited to the army but also the navy and the air force, saying when the armed forces were busy, help could be sought from the other two services.
“The ECP says 50pc of the polling stations are safe. Every unit or office in the army is not for battle. The court has to do what can be done in an open court,” he said, noting that if “any sensitive thing comes forward”, the judges will hear it in the chamber.
The CJP also inquired about the exact number of security personnel required during the polls, to which Awan responded that everything was “on record” and the ECP had given reasons for its decision.
Here, Defence Secretary Lt Gen (retd) Hamooduz Zaman came to the rostrum.
The CJP subsequently said: “Will not ask for sensitive information. Tell us the overall situation. For now, give us information about Punjab because there is no date for KP. Are the security conditions in Punjab serious?” he asked the defence secretary, to which the latter replied in affirmation.
“I cannot tell the details in an open court … we do not want the details to reach the enemy,” Gen Zaman said to which the CJP said the report could be submitted in an envelope. “We will return them after analysis,” he stated.
‘Agreement among judges crucial ‘
At one point during the hearing, the CJP noted that harmony among judges was crucial for the Supreme Court. He observed that while judicial proceedings were made public, consultations among judges were considered internal matters.
Rs20bn needed to conduct poll
The Chief Justice said that we needed only Rs20 billion for election. He wondered which development project was less than RS20 billion.
He said according to the petitioner, the members are given Rs170 billion funds by the government.
Justice Akhtar wondered isn’t it possible to get Rs20bn from the budget. He said that the finance minister claimed that government has collected more than Rs500 billion in taxes.
Subsequently, the finance secretary’s report was presented in court.
“Is this report sensitive too?” Justice Ahsan asked to which the AGP replied that the report was in line with the government’s agreements with the International Monetary Fund (IMF).
“The IMF programme is important in its place,” the CJP said. “The current account and fiscal deficits must be reduced.” He also suggested that the deficits could be minimised by increasing incomes and cutting down on expenditures.
During the previous hearing, the three-judge bench rejected the government’s plea to form a full court.
PTI lawyer Ali Zafar and ECP lawyer Sajeel Swati completed their arguments yesterday.
Today, the attorney general for Pakistan and counsels for interim governments and KP governor presented their arguments.
The allied parties belonging to the PDM have already announced the boycott of the SC proceedings today.
The coalition partners the other day expressed dissatisfaction with the bench hearing the matter.
During the last hearing, the attorney general, as well as the Pakistan Bar Council, had requested the court to constitute a full court for hearing the matter. The court, however, rejected the government's request.
The court had summoned the finance and defence secretaries for today.
Govt mulls bringing reference against judges
In an interview on Saturday, Interior Minister Rana Sanaullah said that references against Chief Justice of Pakistan Umar Ata Bandial and two other judges of the Supreme Court were under consideration.
The interior minister said that the federal government had not taken any decision to file references against the Chief Justice and two other judges, but this decision might be taken because these three judges had given such decisions which had gone against the PML-N.
Security measures
Strict security measures have been taken outside the Supreme Court building.
As many as 700 police officials will perform security duty around the building. Besides this, FC and Rangers officials have also been deployed.
The entry of irrelevant persons near the Supreme Court and Red Zone area is banned.
The worst kind of traffic snarl has occurred in front of Marriot and Serena hotels.
Lawyers trying to reach SC
A large number of lawyers under the leadership of PTI leader Azam Swati are trying to reach the SC building and are raising slogans in support of Chief Justice of Pakistan Umar Ata Bandial.
However, the security officials have not allowed them to reach the Supreme Court and stopped them at the Constitutional Avenue.
Efforts on to bring warring parties to negotiating table
As the political and judicial crisis is deepening, a group of civil society organisations is making efforts to bring all opposing political parties to the negotiating table.
Over 100 civil society organisations, including the Human Rights Commission of Pakistan (HRCP), Pakistan Bar Council (PBC) and Pakistan Federation of Union of Journalists (PFUJ), have sent invitation for the proposed Multi-Party Conference to Imran Khan, PML-N supremo Nawaz Sharif and PPP Chairman Bilawal Bhutto Zardari.
So far, PTI Chief Imran Khan showed his willingness that his party leaders, not him, might attend the meeting. He refused to sit with the government in a grand dialogue on various issues but said his party will attend the conference.
Previous hearing
During previous hearing, Chief Justice of Pakistan Justice Umar Ata Bandial shot down the proposal to constitute full court for hearing PTI appeal against delay in holding elections in Punjab and Khyber Pakhtunkhwa.
CJP Bandial said that people were criticizing different judges. “We are looking into this matter as well,” he added.
He said all judges were being made a target based on hearsay. The Supreme Court was always united, and in some ways, it still is,” he added.
He remarked that media sometimes said wrong things. But the court always showed restrain. He said “We are bound to follow the constitution. We are among those who had been house-arrested.” The top judge went on to say that he was only talking about the implementation of the Constitution.
He repeated that it was written in the constitution to hold elections within 90 days
The CJP further said that the tenure of the assemblies would be completed in August. “We can take a break for a few days if the government and opposition want to hold negotiations. If the negotiations don’t work out, we fulfil our constitutional role.”
But first, he continued, tell the court about the Rs20 billion expenditure on the elections. The CJP also recalled that he had suggested a cutback on government expenditures earlier.
The top judge also asked AGP Mansoor Awan to present his arguments.
As he began, the AGP first requested the court to reduce the temperature within it, stressing that everywhere in the country, the [political] temperature needed to be brought down.
“What did you do to reduce the friction?” the CJP asked here to which Awan replied that the temperature would only cool down with time.
Reporters Amanat Gishkori and Farzana Siddique