The diminished bench — comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar — is listening to the case.
Simply earlier than the listening to commenced, the federal government submitted a press release via the Legal professional Basic of Pakistan Mansoor Awan in SC, in search of the dismissal of the PTI petition within the gentle of what it interpreted as a “4-3” order issued by the apex courtroom on March 1.
The federal government, nevertheless, had disputed with the courtroom instructions, calling the decision 4-3 as a substitute after Justice Jamal Khan Mandokhail and Justice Syed Mansoor Ali Shah — who have been among the many 4 judges who had written extra notes within the Feb 23 order — raised objections on the structure of the bench in addition to the invocation of the apex courtroom’s suo motu jurisdiction by the chief justice.
In its “concise assertion” submitted earlier than the courtroom, the federal government sought to “object to the maintainability and listening to of the petition for being based mostly on misreading and mistaken understanding of the March 1 order”.
The assertion insisted: To be able to verify the true import of the March 1 judgment, it’s crucial that the chronology of occasions main as much as that day have to be considered.
The federal government additionally requested the present bench to recuse itself from the case and as a substitute a brand new full courtroom be shaped to take up the case.
Attorney General for Pakistan (AGP) Mansoor 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 commenced today.
Secretaries of finance and interior ministries were also in attendance.
At the outset of the hearing, Naek came to the rostrum. Justice Bandial asked the lawyer if PPP had ended its boycott against the court hearing to which the latter replied that he had not boycotted the proceedings.
“How can you boycott [the hearing] on one side and also attend the hearing on the other hand,” Justice Akhtar wondered. “For the last 48 hours, the media has been saying that political parties have expressed no confidence in the bench.
“How will you present your arguments if you don’t have confidence in us?” the judge asked and then stated that the court would only hear Naek if he withdrew the statement — jointly issued by coalition leaders last week expressing “complete no-confidence” in the bench.
Justice Akhtar also asked Naek to read out the joint statement and expressed displeasure with the language used in it.
Here, the CJP asked the PPP lawyer if he wanted to become a part of the proceedings, to which Naek replied in affirmative and said that “we never boycotted the hearing”.
“But something else was written in the newspapers,” Justice Bandial highlighted. Naek replied that his party had reservations on the maintainability of the petition.
However, the CJP insisted that Naek confirms in writing that he had not boycotted the hearing.
Turning to the AGP, Justice Bandial then inquired about the directions he had received, to which Awan replied that the government worked under the Constitution and could not boycott the proceedings.
Subsequently, AGP Awan began presenting his arguments. The lawyer highlighted that the PTI petition was based on the SC’s March 1 verdict, in which the apex court had instructed the president to select a date for elections in Punjab and the governor to pick a date for polls in Punjab.
“But the KP governor never selected a date until the petition was filed,” he pointed out.
“The question is how can the ECP give the date of Oct 8 for polls,” the CJP said here. “The law gives no one the authority to delay elections. Only the court can delay the date for polls.
“Even in 1988, elections were postponed on the orders of the court,” he recalled, adding that court orders were issued on the basis of “ground realities”.
“The order you are mentioning here [SC’s March 1 verdict] has already been executed,” Justice Bandial pointed out.
Justice Ahsan observed that the actual matter under consideration was the ECP’s decision to postpone elections, noting that the commission was bound to follow the court orders.
Here, AGP Awan recalled that during the first round of the hearings — the court’s suo motu proceedings on elections in Punjab and KP — a nine-member bench had conducted the proceedings.
“On Feb 21, we received the order of the court which included dissenting notes from two judges. The two judges had dismissed the case in the first hearing,” he said.
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.
Justice Akhtar recalled that on February 27, a nine-member bench had submitted the matter to the CJP for the reconstitution of the bench with Justice Ahsan adding that when the bench was reconstituted it consisted of five judges.
The AGP consented to the judge’s observation.
Meanwhile, 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.
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.
On the other hand, Justice Akhtar stated that if the “logic behind the 4-3 verdict” was accepted, the matter would be referred to the same nine-member bench that was first constituted for elections suo motu proceedings.
He added that the decision then would either be of the five-member bench or the nine-member bench.
Justice Bandial pointed out that the detailed dissenting notes of the judges did not include any points about the reconstitution of the bench.
Here, the AGP — while quoting the notes — stated that the bench’s reformation was an administrative move, and Justices Ahsan and Mazahar Ali Akbar Naqvi had distanced themselves from the suo motu hearing.
The CJP clarified that four judges had recused themselves from the bench, adding that it would have been more accurate to mention in the note that they were removed from the bench.
Justice Bandial pointed out that the note did not specify which judges had voluntarily separated from the bench, adding that when a judge wanted to withdraw a bench, they had to submit a judicial note.
“There is no doubt in the fact that a judge can’t be thrown out of a bench,” he stated, adding that when the court ordered the reconstitution of a bench, it did not mean that other judges were being removed from the bench.
Justice Ahsan said here that forming a new bench was a judicial directive and not an administrative one.
But the AGP argued that the opinion of the two judges — Justices Mandokhail and Shah — could not be separated. Justice Akhtar responded by citing Justice Afridi’s statement which stated that he had left his inclusion in the bench to the chief justice’s discretion.
Justice Akhtar also pointed out that the absence of the two judges was not brought up during the two-day suo motu hearing conducted by the five-member bench.
The CJP stated that a new bench was formed and the hearing began again. Additionally, it was noted in a footnote that the opinion of the two judges was not part of the decision record.
He further stated that the AGP had not succeeded in convincing the court to separate the judges who previously heard the case from the current bench.
Within the 12-page order, the judges had known as for the postponement of suo motu issues till amendments have been made to Supreme Court docket Guidelines 1980 relating to the nation’s prime choose’s discretionary powers to kind benches.
Subsequently, in a round issued on March 30, the CJP disregarded the judgement stating that the “unilateral assumption of judicial energy in such a way” was a violation of guidelines.
Referring to the round throughout the listening to as we speak, AGP Awan argued {that a} judicial order or judgment couldn’t be overruled by an administrative round to which the CJP replied that the round didn’t overrule any choices.
He clarified that the round had as a substitute issued administrative directions for the judgement. Justice Bandial went on to say one other round that halted proceedings for circumstances underneath Article 184(3) of the Structure and clarified that the round didn’t violate the choice of the five-member bench.
“There have been no clear directives within the order issued by Justice Isa,” Justice Bandial added.
The AGP argued that guidelines relating to petitions have been current in Article 184(3) of the Structure and there was a five-member SC verdict accessible too on the mechanism of suo motu circumstances.
At that, the CJP stated: “Within the verdict, it’s written that it might be higher to cease the listening to of circumstances on 184(3). Within the March 29 verdict, there was no directive reasonably a want was expressed.
“Selections on circumstances need to be taken in favour of the general public, not by adjourning the listening to,” he burdened.
At one level throughout the listening to, AGP requested the courtroom to adjourn the listening to till guidelines for petitions underneath Article 184(3) have been finalised. Nevertheless, Justice Ahsan inquired: “How can proceedings be postponed when guidelines for constitutional petitions exist already?”
Regardless of that, Awan stated right here, a courtroom order couldn’t be dismissed via a round.
At that, the CJP stated that the courtroom had all the time taken warning when it got here to taking a suo motu discover, recalling that the primary such discover this 12 months was taken when the SC obtained requests from the audio system of two assemblies.
The CJP disagreed with the argument that this case was totally different from different circumstances underneath Article 184(3) of the Structure. He questioned how the courtroom may cease motion on circumstances whose guidelines had already been established and emphasised that the process for jurisdiction underneath Article 184(3) was very strict.
Justice Akhtar questioned over conflicting statements, as one aspect demanded a full courtroom and the opposite aspect argued towards holding a listening to in any respect. He requested the AGP to make clear whether or not a listening to could possibly be held or not.
He additional commented that if the AGP’s argument was accepted, even a full courtroom couldn’t go forward with proceedings.
The CJP identified that the choose who signed Justice Isa’s order had recused himself from the bench. He questioned the way it was potential for Justice Isa, who authored the decision, to listen to the case.
The CJP recommended that the federal government may request the formation of a bigger bench, not a full courtroom. The AGP agreed and acknowledged that he would make this plea because the case progressed.
Through the earlier listening to, the CJP rejected Legal professional Basic for Pakistan (AGP) Mansoor Usman Awan’s request for the formation of a full courtroom and directed him to carry the defence and finance secretaries in courtroom together with him on Monday (as we speak). He hinted that the courtroom would possibly even name the armed forces and problem directives for managing funds to carry elections in Punjab.
“The state of Pakistan can’t stay rudderless and has to achieve its vacation spot in accordance with the Structure,” the CJP noticed, including that elections needs to be held handy over the federal government to the individuals of Pakistan.
Justice Bandial additionally requested the highest legislation officer to give you good causes that the courtroom might settle for, in any other case it was duty-bound to present a judgement.
A press release issued by PML-N after the assembly stated “a whole mistrust had been proven within the three-member bench of the SC comprising CJP Bandial, Justice Ijaz-ul-Ahsan and Justice Munib Akhtar”.
“The huddle calls for wrapping up [of] the three-member bench’s proceedings relating to delay in elections to the Punjab Meeting forthwith and acceptance of the four-member majority determination within the suo motu case,” it stated.
It identified that there had been a “clear division within the SC, subsequently it ought to chorus from issuing controversial political choices”.
PTI’s petition, moved by party’s Secretary General Asad Umar, former Punjab Assembly speaker Mohammad Sibtain Khan, former Khyber Pakhtunkhwa Assembly Speaker Mushtaq Ahmad Ghani and ex-lawmakers of Punjab Abdul Rehman and Mian Mahmoodur Rashid, pleaded that the ECP’s decision violated the Constitution and tantamount to amending and subverting it.
In the petition, PTI sought directions for the federal government to ensure law and order, provisions of funds and security personnel as per the ECP’s need to hold the elections.
It also requested the court to direct the Khyber Pakhtunkhwa governor to announce the date for elections to the provincial assembly. Last week, KP Governor Ghulam Ali also proposed Oct 8 as the date for elections in the province. Earlier, he had announced May 28 as the date for polls.
The PTI questioned the ECP’s authority to “amend the Constitution” and asked how it could decide to delay elections to any assembly beyond the period of 90 days from the date of dissolution of the said assembly as mandated by the Constitution.
The petition argued that the ECP was bound to obey and implement the judgments of the Supreme Court and had no power or jurisdiction to overrule or review them.
In its March 1 verdict, the Supreme Court ordered to hold the election to the Punjab Assembly within 90 days and that the date be announced by the president. It also directed the authorities to provide funds and security personnel to ECP for the elections, the petition recalled.
The ECP cannot act in defiance of the Supreme Court’s directions as it has done in this case which was illegal and liable to be set aside, the petition pleaded. By announcing Oct 8 as the date, the ECP has delayed the elections for more than 183 days beyond the 90-day limit as prescribed in the Constitution.
The petition said that if the excuse of unavailability of security personnel was accepted this time, it would set a precedent to delay any future elections.
The petition added that there was no assurance that these factors — financial constraints, security situation and non-availability of security personnel — would improve by Oct 8.
The “so-called excuse” would mean the Constitution could be held in abeyance every time elections were due, the petitioners feared adding that in the past similar situations have persisted, but elections were held despite them.
These situations can’t be used as excuses to “subvert” the Constitution and deny people their right to elect representatives.
“Not holding elections in case of threats by terrorists will amount to giving in to the threats, which is in fact the aim of all terrorist activities,” the petition explained.
