The Supreme Court on Wednesday made it clear that it would not backtrack from its April 4 order to hold the elections in Punjab on May 14 as it summoned the leaders or representatives of all political parties, including the Jamaat-e-Islami, on Thursday (today).
It also declared the defence ministry’s plea for conducting polls in the country at the same time as inadmissible.
A three-judge bench comprising Chief Justice of Pakistan Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar continued hearing the petition related to the polls in Punjab.
The apex court also warned the government of “serious consequences” if it failed to release the funds required for conducting polls in Punjab and Khyber Pakhtunkhwa while hearing the defence ministry’s request.
“The learned 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 requires that appropriate remedial measures be taken in full measure not later than April 27, 2023, and, in particular, by that date the sum of Rs21 billion be provided, in immediately available and realisable funds, to the commission for the holding of the general elections to the Punjab and KP assemblies,” the SC order read.
In its order, the bench observed that the petitioner's lawyer emphasised on peaceful, fair and fair elections.
It further read that according to the petitioner, there should be mutual respect and understanding between the political parties participating in the general elections.
The order continued that according to the petitioner, the results of the elections at one time were better than the elections of 1970 and 1977.
“Prima facie, the submission made by the learned counsel appears to have substance because elections are contested in the political arena and these can be best conducted with the feedback and input of all electoral political forces in the country [that] would contest in such elections,” the decision read.
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“However, the court considers that the alternative route proposed by the learned counsel cannot operate to negate or erase the date fixed by the court in its judgment dated 04.04.2023 for the holding of general elections to the Punjab Assembly which is in line with the dictates of the Constitution,” it added.
“This is for the reason that political dialogue must not be made a means for avoiding the imperative obligation under Articles 112 and 224 of the Constitution … to hold a general election to a provincial assembly with 90 days of its dissolution, the Therefore, time is of the utmost essence in exploring the course suggested by the learned counsel,” the order stated.
It added that the court appreciated the initiative taken by the petitioner to propose the initiation of a political dialogue as a means for settling a practical and feasible date on which general elections, which satisfied the requirement of Article 218(3) of the Constitution, were held.
“Keeping the time constraint in view, notice is issued to the respondents No 3 to 12 [political parties] in this petition as well as to the Jamaat-e-Islami through its Ameer for arranging their representation through their duly authorised and instructed senior office bearers of the respective parties to appear in-person before the court tomorrow [Thursday]. Notice shall also be issued to the Federation of Pakistan, the Election Commission of Pakistan and the Attorney General for Pakistan under Order 27A of the CPC. Office shall send the notices through the various modes provided in law including special messenger and shall request the electronic and print media to convey the court’s order to the respective political parties,” it concluded.
A day earlier, the defence ministry moved the SC seeking elections across the country on the same date and requested the court to withdraw its order directing that the polls in Punjab should be held on May 14.
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In its report, the ministry stressed the need for holding the elections on the same day because of the deteriorating security situation in the country.
The report added that the armed forces would be able to perform election duties by early October.
At the start of the hearing, the CJP observed that the issue had dragged on for too long and asked Attorney General for Pakistan (AGP) Mansoor Awan to read the finance ministry’s report out loud in the courtroom.
In a separate order, the top court noted that the AGP’s plea could not be entertained or relief granted since the matter was already decided by a final judgement of the court and was thus “disposed of as not maintainable”.
The order read that it was “specifically queried” from the Finance Division and confirmed by it that Article 84 of the Constitution allowed the federal government to make expenditures from the Federal Consolidated Fund. It added that the federal government obtained ex-post facto authorisation from the NA in the form of a supplementary budget statement for this purpose.
It added that the normal practice was for the statement to be laid before the NA. The order further stated that there could be therefore no doubt that the federal cabinet “all along itself had the authority and power to authorise the expenditure of Rs21 billion” for election expenses. It added that the AGP had not attempted to “seriously dispute” this position.
The order read that the judges were not satisfied that the NA resolution expressing disapproval of the fund release stood in the way of the cabinet exercising its constitutional power under Article 84.
“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 NA at all times,” the order stated in terms of the cabinet’s decision to refer the release of funds to the House.
It continued that as the office of the prime minister had primacy, the premier must enjoy the confidence of the majority of the NA at all times.
“It follows from the foregoing (and this is 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 NA. This would be certainly true for a financial measure of constitutional importance,” it added.
The order read that when viewed from this perspective, the NA’s rejection of the demand to release poll funds held serious constitutional implications.
“One possibility is that the government (and also, since the federal cabinet is appointed on the advice of, and is headed by, him, the prime minister) have lost the confidence of the majority of the members of the NA. The learned 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 NA. For present purposes, we accept this statement made by the learned attorney general,” the SC wrote in the order.
“The other possibility then is that the putative rejection … is to be regarded as anomalous, and the resulting situation can be rapidly rectified. The learned attorney general fully appreciated the serious constitutional consequences that would flow, were the first possibility to reflect the correct position,” it continued.
“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 emphasised 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 order warned.
“The learned 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 requires that appropriate remedial measures be taken in full measure not later than April 27, 2023, and, in particular, by that date the sum of Rs21 [billion] be provided, in immediately available and realisable funds, to the commission for the holding of the general elections to the Punjab and K-P assemblies,” the decision stated.
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