CJP seeks earliest time for holding K-P, Punjab polls

ISLAMABAD:

Islamabad. Hearing the PTI’s petition against the Elections Commission of Pakistan's (ECP) delay in elections in Punjab and Khyber-Pakhtunkhwa citing security threats, Chief Justice of Pakistan Umar Ata Bandial on Wednesday asked the interior and defence ministries to give the shortest period of time until which the situation would be improved to the level where polls could be held.

A five-judge bench, comprising the CJP, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Jamal Khan Mandokhail and Justice Aminuddin Khan resumed the hearing of the petition.

The ECP had postponed the polls from the scheduled date of April 30 to October 8, blaming the deteriorating security situation in the country and the lack of funds as well as security personnel for its move.

However, the PTI moved the SC against the ECP’s decision, describing it as “illegal” and “unconstitutional”.

The CJP, during the previous hearing, had observed that the electoral watchdog had no right to extend the elections date and its order was written in haste.

However, the proceedings witnessed ambiguity regarding the earlier apex court judgement of March 1 as one of the judges on the five-member bench, Justice Mandokhail, made it clear that the case was dismissed by a majority 4-3 as the chief justice did not issue an “order of the court”.

As the proceedings began, PPP counsel Farooq Naek appeared before the court and asked for the party to be included as a respondent in the case.

When asked by the CJP if the application was on behalf of the ruling Pakistan Democratic Movement (PDM), the lawyer replied that the PPP was not part of the alliance.

The CJP ordered the electoral watchdog’s lawyer to present his arguments first.

Conversely, Justice Mandokhail, referring to the apex court’s March 1 judgment on the elections in K-P and Punjab, noted that four judges had “dismissed” the proceedings.

Justice Mandokhail added that according to him, the verdict of the four judges in the suo motu case was the “order of the court”.

He pointed out that the CJP had not issued an “order of the court” yet.

He questioned how the president could give a date for the polls and the ECP issue an election schedule if an order had not been issued.

He noted that the four judges, who had issued dissenting notes in the suo motu case, were his “brothers”.

The PPP’s counsel demanded that a full court bench be formed to hear the case.

To this, Justice Mandokhail questioned why a full court should be summoned, adding that the same seven-judge bench should hear the case.

However, Naek argued that the ongoing situation called for the formation of a full-court bench, adding that the nation was “confused”.

He added that clarification was required on the SC’s March 1 verdict.

CJP Bandial told Naek to submit a written request to the court.

Last month, the CJP had taken a suo motu notice of the polls in the two provinces and formed a nine-judge bench.

However, the bench was split into a five-judge bench.

The SC had also issued a written order on February 23, when Justice Mandokhail objected to the initiation of the proceedings under Article 184(3).

The CJP reconstituted the bench, comprising himself, Justice Mansoor Ali Shah, Justice Akhtar, Justice Mandokhail, and Justice Muhammad Ali Mazhar.

The judges, who dissociated themselves from the hearing, included Justice Ahsan, Justice Yahya Afridi, Justice Mazahar Ali Akbar Naqvi, and Justice Athar Minallah.

On March 1, the top court, in a 3-2 verdict, directed the ECP to consult with President Dr Arif Alvi for polls in Punjab and the K-P governor for elections in his province.

However, earlier this week, Justice Mandokhail and Justice Shah cast doubts on that verdict, saying that the proceedings stood dismissed by a majority of 4-3.

During the proceedings on Wednesday, ECP’s lawyer Sujeel Swati came to the rostrum and was asked by Justice Mandokhail under what order had the ECP implemented the decision to announce the election dates.

“The Election Commission has implemented the decision of March 1,” Swati replied, adding that after the court's order, the ECP approached the president who gave the date of April 30.

He maintained that the schedule was released after fixing the election date and then preparations for the polls began.

Swati highlighted that Article 218 of the Constitution held more weight than any other law.

According to Swati, a favourable environment for elections was also mentioned in the Constitution and polls should be held under 90 days as per Article 224.

The CJP remarked that the ECP lawyer had prepared well.

Swati continued that the court order stated that the decision was 3-2 and signed by five judges.

He said the ECP had read paragraph 14 as well as the opening lines of the judgment and acted.

Here, Justice Mandokhail asked him if the ECP saw the short order, to which Swati said the commission might have misunderstood.

Justice Akhtar maintained that in the dissenting note of March 1, it was not written anywhere that the decision was 4-3.

He added that it was the judges’ right to disagree.

“This minority is a law and cannot claim to be in the majority,” he insisted, adding that five judges heard the case in an open court and signed the verdict.

Read ECP had no authority to postpone elections: CJP Bandial

Justice Mandokhail noted that the short order contained dissenting notes and mentioned that he agreed with the decision of Justice Afridi and Justice Minallah.

“Did the judgments of Justice Yahya Afridi and Justice Athar Minallah dissolve in the air?” he questioned.

At this point, the CJP urged that the matter belonged to the court’s chambers and it should remain there.

Justice Mandokhail asked what position the ECP took after the detailed decision.

The CJP directed the ECP lawyer to continue his arguments.

Swati stated that the ECP made efforts to conduct fair and transparent polls and suggested election dates under Section 57.

He further said the court’s decision was received on March 3 and the ECP started implementing the decision according to its understanding.

“The Election Commission has to look at the right to vote and the security of the citizens,” Swati said, adding that the schedule was issued by the president.

Justice Akhtar remarked that the ECP’s March 22 judgment was challenged and asked when it was issued.

The ECP lawyer replied that the order was issued on the evening of March 22.

He added that the nomination papers had already been received when the order was issued.

Swati continued that a few phases of the schedule had been completed by the time the order was issued.

According to Swati, the army refused to provide manpower to the ECP and highlighted that as per the Constitution, the elections should be conducted in a transparent, peaceful and conducive environment.

He informed the court that the ECP had written letters to the army, Rangers and the Frontier Corps for security.

Swati also claimed that intelligence agencies gave secret reports to the commission which could be shown to the court.

He stated that these reports showed the presence of the Tehreek-e-Taliban Pakistan (TTP) militants and various other banned organisations in the region of Bhakkar and Mianwali districts.

The counsel elaborated that 412,000 personnel were requested for the security of the elections.

However, he added that there was a shortage of 298,000 security personnel.

Justice Akhtar questioned if the ECP knew in February that elections should be held in October.

He further asked why the president had fixed April 30 as the elections date if the polls were supposed to be held in October.

Swati said the ECP had made its decision based on the intelligence reports.

He said the commission held a meeting to discuss the elections and added that the interior ministry in its letter dated February 8 mentioned the law and order situation.

Justice Akhtar observed that the ECP’s decision mentioned it required Rs25 billion to carry out the elections.

To this, Swati said a sum of Rs5 billion had already been released to the ECP.

He continued that the finance ministry had said it could not release funds for the elections in the current financial year.

He added that the finance secretary had said it would be impossible to release Rs20 billion.

The CJP noted that the elections were supposed to be held in 2023 anyway.

He asked if there was no budget allocated for the 2023 elections in the fiscal year budget.

To this, the attorney general said the budget for elections was to be kept in the next financial year as it was not known that the provincial assembly would dissolve prematurely.

After the CJP asked, the AG clarified that if elections were held all over the country at once, Rs47 billion would be spent, but if the elections were separate, there would be an additional expenditure of Rs20 billion.

Swati stated that the special secretary of interior said political figures faced security threats and that according to the interior ministry , security threats would not only be present on election day but also during the polls campaign. He added that the interior ministry also referred to the attack on PTI Chairman Imran Khan.

The commission’s counsel maintained that the electoral body was informed that it would be ‘impossible’ to provide security for the election without the deployment of the army.

He further informed the court that the special secretary of interior had said peaceful elections could not be held in these circumstances and the country’s premier intelligence agency had alerted the commission that banned organisations had formed parallel governments in K-P.

Swati elaborated that 443 security threats were received in K-P during 2023, and there were 80 incidents of terrorism and 170 martyrdoms. He also claimed that according to confidential reports, it would take six to seven months to resolve the issues.

The chief justice stated that the ECP’s information was “serious” and questioned if they had brought it to the attention of the president.

“If you did not tell the president of Pakistan, you have made a mistake,” Justice Bandial said, adding that the date was given by Alvi on the advice of the ECP.

Swati further said that there were ongoing security operations in various areas of Punjab, to which the CJP stated that there was an operation every two to three days in the kutcha areas.

CJP Bandial asked regarding the timeframe of the completion of the operations, to which Swati replied that some operations would take up to six months to complete.

11:08

The counsel said that the ECP had no room to doubt the report of the agencies, to which Justice Akhtar replied that two assemblies had been dissolved.

The ECP lawyer reiterated that the facts stated in the reports of the agencies could not be ignored.

Justice Mandokhail questioned if there was a mechanism to verify these reports, to which the CJP observed the issue of terrorism was present. Swati also replied that incidents were reported in the media.

The CJP noted that terrorism had been a problem in Pakistan for the past two decades, yet despite that, elections were held.

He added that elections were held thrice during the 1990s ‘when communism and terrorism were on the rise’.

Justice Bandial continued that the ECP suggested new dates without informing the president.

However, Swati replied that Alvi had written to the prime minister, and not the ECP on the change of date.

Justice Akhtar questioned why the ECP had not approached the court before making a decision and cancelling the election schedule. Swati replied that the ECP followed court orders, to which Justice Mandokhail questioned where the court order was signed by all the judges.

Swati maintained that according to the electoral watchdog’s understanding, the decision was 3-2. The court then went for recess.

After the hearing resumed after a short break, Swati said the commission’s October 8 date was not temporary.

He added that according to the security agencies if elections were held in certain areas, they would become a target of terrorists.

“No fundamental rights are affected by the Election Commission’s responsibility to conduct elections,” he said, adding that it was the responsibility of the ECP to conduct elections with integrity.

Justice Ahsan questioned how could the ECP change the date given by the respective governor and the president, highlighting that the Constitution clearly stated who would provide the polling date.

He also inquired if Section 58 of the Election Act was superior to the Constitution.

The chief justice noted that the EPC should have approached the apex court and convinced the bench, he added that the lawyer had the opportunity to convince the court today.

Justice Bandial questioned if October 8 was a “magical date” when everything would be fine and asked why October 8 could not be replaced by September 8 or August 8.

To this, the ECP’s lawyer said that October 8 is the first Sunday after the completion of six months.

When asked by Justice Mandokhail if the polling date was a part of the election programme, Swati answered in the affirmative.

Justice Aminuddin said that the date suggested to the president did not correspond to the date given by the ECP and questioned why Alvi was not informed about the meetings in February.

“When it was known that elections could not be held on April 30, why was the date suggested,” he asked.

To this, Swati replied that the sensitivity of the matter was assessed in March.

When asked by the CJP about what would happen if there were no transparent elections, Swati said if polls were not fair, then democracy would not work.

“Petty fights happen in every country, the real issue is that weapons should not be used,” CJP Bandial observed, adding that if the ECP did not want even a minor dispute, they should create a system where people could cast their votes from home.

The arguments of the ECP’s lawyer were then completed.

The end of the hearing, the CJP noted that the SC had sought a written assurance from the PTI to reduce the political temperature of the country.

He added that the tensions between political forces was affecting other state institutions. He added that as institutions could not speak, so they listened silently to what people were saying about them.

The CJP also asked to reduce the political temperature for transparent elections.

He added that during fair play, sportsmen came forward not warriors.

The top judge continued that anger needed to be controlled and asked who would give reassurances on behalf of the incumbent government.

He added that it would be appropriate if a senior official gave the assurances.

The CJP noted that the purpose of judicial proceedings was to keep the state functioning in accordance with the Constitution and not to benefit anyone.

“Democratic governments cannot come forth without elections. Two chief ministers exercised their power to dissolve assemblies for better or for worse. Steps have to be taken to move forward,” he added.

He instructed the ECP to ask the interior and defence ministries the minimum time to improve the current situation.

The CJP added that elections could be held over two days, if one day was not possible.