Election delay case: CJP says ‘circular’ didn’t overrule Justice Isa’s order
ISLAMABAD: Chief Justice of Pakistan (CJP) Umar Ata Bandial on Monday clarified that the “circular” issued by the Supreme Court did not overrule the order given by a bench headed by Justice Qazi Faez Isa.
The remarks by the chief justice came on Monday as the Supreme Court resumed the hearing of the election delay case after the government filed a petition seeking a bench of new judges to hear the election suo motu case.
The petition essentially calls for the recusal of the CJP Bandial-led bench that comprises Justice Munib Akhtar and Justice Ijaz ul Ahsan as members.
Attorney General for Pakistan Mansoor Usman Awan filed a miscellaneous plea in the apex court ahead of the scheduled hearing of the suo motu as well as the Pakistan Tehreek-e-Insaf’s (PTI) petition challenging the order of the Election Commission of Pakistan (ECP) for postponing the Punjab election to October 8.
In the plea, filed on behalf of the federation, the Supreme Court has been requested to dismiss the election delay case because of the majority (4-3) order/judgment of March 01.
The petition stated that the proceedings in the instant petition might kindly be postponed in light of the order passed by Justice Qazi Faez Isa, postponing all the proceedings in suo motu matters.
“This Hon’ble Bench, in view of submissions made in paragraphs 11 and 12, may graciously recuse from hearing the instant petition and a bench comprising of all remaining Hon’ble Judges of this court, who did not hear SMC No. 1/2023, CPs No 1 and 2 of 2023, may kindly be constituted to decide the questions raised herein,” it requested.
Today’s hearing
At the outset of the hearing, Pakistan Peoples Party (PPP) lawyer Farooq H Naek came to the rostrum and requested to speak.
However, Chef Justice of Pakistan (CJP) Umar Ata Bandial asked whether they were becoming a party to the case as they had announced a boycott of the proceedings.
At this, Naek told the bench that they have not boycotted the proceedings as of yet.
“Do your consultations and tell us. Tell us in writing that you have not boycotted the hearing,” said the CJP.
The PPP counsel then clarified to the court that his party had objections to the formation of the bench and had not boycotted the proceedings.
The CJP then remarked that in the newspapers it has been reported that the PPP has boycotted as well.
“You have boycotted and came to present your arguments. In the [PDM] meeting, no confidence was expressed in the bench,” interjected Justice Munib Akhtar.
On this, Pakistan Muslim League-Nawaz (PML-N) lawyer Akram Sheikh told the court that they are yet to take back the power of attorney and they have objections to the bench hearing the case. He also clarified they have not boycotted the proceedings yet.
“A conference of political parties was held and in the last 48 hours in the national press, it is being stated that a boycott has been announced. If you do not have confidence in us then how can you give arguments,” asked Justice Akhtar.
The CJP then turned towards AGP Mansoor Usman Awan and asked what instructions he had gotten, adding that the government cannot boycott the proceedings.
The AGP responded that the governments operate according to the Constitution and that the ECP has the power to defer the date for the polls.
However, Justice Ahsan observed how can ECP change the date when the Supreme Court has made a decision.
“Supreme Court’s decision is applicable to everyone including the executive,” said Justice Ahsan.
AGP Awan then went on arguing about the March 1 order of the Supreme Court stating the president was asked to give a date for polls in Punjab and the governor in Khyber Pakhtunkhwa. He added that the KP governor is yet to fix a date for the polls to the provincial assembly.
“The law does not allow anyone to delay elections. Only the court can defer the election date,” responded CJP Bandial. He added that in 1988 as well the court postponed the elections.
“The order that is being referred has already been implemented,” added CJP Bandial. He added that the Supreme Court’s hearing is in the public interest and there is a difference of opinion among judges.
On the other hand, Justice Ahsan stated that the real issue was the ECP order, adding that court directives are bounding.
AGP Awan then went back to the suo motu case stating that in the “first round,” a nine-member bench heard the case.
“Details of the two judges’ dissenting note have come forward while the two judges had thrown out the pleas on the first day,” stated AGP Awan.
CJP Bandial then told the AGP that he is yet to find a case in which the chief justice was barred from changing the bench.
The AGP said that the Peshawar case was one but the CJP stated that it was not a judicial order but a minority order.
AGP Awan then repeated that the court order for the March 1 verdict was yet to be issued.
“Are you saying that I did not form a new bench and the original one is still intact?” asked CJP Bandial adding, “Difference of opinion is part and parcel of the apex court’s proceedings; however, consultations are held as well”.
“In our opinion, the majority of the judges have rejected the suo motu notice,” said AGP Awan.
The CJP responded that the AGP was disregarding the decision of a five-member bench that had empowered the top judge to formulate benches.
The AGP stated that reservations regarding Justice Ahsan and Justice Mazahar Naqvi were in front of the court, and repeated that the current suo motu notice had been rejected by the majority of the court.
However, CJP Bandial stated that all judges agreed that the chief justice had the authority to form benches.
“The power exercised by the chief justice is administrative and not judicial. The case was heard on merit,” stated Justice Ahsan.
The AGP responded that Justice Athar Minallah had said that “if the chief justice wishes he can include him on the bench”.
“If the judge has stated that it’s the chief justice’s prerogative to form a bench then the argument is over,” interjected Justice Akhtar. He added that if the logic behind the 4-3 decision was accepted then the matter would go to the nine-member bench.
“The detailed dissent note does not include the point of reconstitution of the bench,” added CJP Bandial.
The AGP then stated that as per the note, the reconstitution of the bench was an administrative measure, arguing that as per the note Justice Ahsan and Justice Naqvi recused themselves from the case.
The CJP then added that after the opinion of two judges a new bench was formed and the hearing was resumed.
At this, AGP Awan stated that as per the opinion of four judges, the suo motu notice was dismissed.
However, CJP Bandial stated that the government’s lawyer had failed to convince them on this point. He also added that Justice Qazi Faez Isa’s order is not clear.
“The order of any bench of the Supreme Court applies to all,” stated AGP Awan.
However, Justice Akhtar observed that if the current case is being talked about then no such thing is applicable in this case.
“What you are saying is based on assumptions. Suo motu notice is taken on very important matters,” stated CJP Bandial.
AGP seeks full court
Moving on, AGP Awan said that he had brought a petition seeking the formation of a full court. “It was reported that the Supreme Court had rejected the full court request but it was missing from the order.”
The CJP then noted that the AGP’s arguments were based on assumptions, adding that the court is very careful with suo motu notices.
“In the suo motu notice it is not clear if the other party will come or not. Apart from the speaker’s petition, two judges requested to take suo motu notice,” stated CJP Bandial. He added that the AGP was “polishing things” to his benefit.
The AGP then requested the bench to adjourn the hearing of the case.
However, Justice Akhtar remarked that on the one hand the AGP was asking for a full court and on the other hand he was asking adjournment of the case.
“Make up your mind what you want from the court,” stated Justice Akhtar.
The AGP then repeated that the request for the formation of the full court was not accepted in the first hearing and also on Friday but the order did not mention that it was rejected.
The CJP then clarified that the SC had only stated that they will look into the full court matter later and did not reject the plea.
On the circular issued regarding Justice Qazi Faez Isa’s verdict, CJP clarified that no decision has been withdrawn on the basis of the circular.
The AGP then requested the court to adjourn the hearing till the rules of 184/3 are finalised.
But Justice Ahsan asked how they could adjourn the hearing when the rules have been made for constitutional petitions.
While CJP Bandial stated that the AGP should have demanded the formation of a larger bench instead of a full court. He also asked the AGP to tell the bench if any member of the nine-member bench refused to sit in the case.
“Judges said it is up to the chief justice to include us in the bench or not,” said CJP Bandial. He then added that the March 1 decision was a 3-2 verdict.
“Some judges without listening to the hearing ruled that the petitions cannot be heard. How can the decision of the judges that had separated be implemented,” said CJP Bandial. He added that the decision given without hearing a case has a very limited scope.
The AGP then requested the CJP to review the decision of the four judges but the CJP stated that can only be done if the decision is operational.
AGP request in chamber briefing
Moving on, CJP Bandial asked the AGP that the court had summoned the finance and defence secretaries and whether they were present in the court.
The AGP responded in the affirmative and stated that he had the finance secretaries report.
The CJP stated that security issue was very sensitive and they should hear the two men first and let them go back.
At this point, AGP Awan requested the court for an in-chamber hearing of the case.
But CJP Bandial stated that in such an instance they could provide the court with a sealed copy.
“We are not talking about the army, the armed forces include Air Force and Navy as well,” CJP remarked.
If the army personnel are busy somewhere else then the personnel of air and naval forces and other security agencies can be deployed.
The CJP then asked how much security personnel were needed for election and said that the remaining sensitive details will be heard in chamber.
Defence secretary to give in-chamber briefing on Punjab security
At this point Defence Secretary Lieutenant General (retd) Mehmood Rehman appeared before the court.
CJP Bandial inquired about the gravity of the security situation in Punjab.
At this the defence secretary said that he will give an in-chamber briefing to the court on Punjab’s security as the enemy can leak information if matters are discussed in the court.
“There is some sensitive information that will be shared in chamber,” Rehman said.
CJP Bandial then asked the secretary if he had brought some sealed files, at which the latter stated that he hadn’t brought them yet but they will be presented in the court.
At this, the CJP asked Rehman to give the files to the bench.
“We will review [the files] and return them. The defence secretary doesn’t need to come to the next hearing,” the chief justice remarked, adding that they will ask in the court if any question come to their mind.
“We do not want to put our forces in any trouble,” Justice Ijazul Ahsan remarked, adding that the court will not let any information leak.
The defence secretary reiterated that he will give a detailed briefing to the court in the chamber.
PTI lawyer contends ‘not much security needed’ for polls
Meanwhile, PTI’s lawyer Ali Zafar claimed that not much security was needed as the situation in Punjab wasn’t grave.
At this, CJP suggested that the retired army officials and para military forces can also do election duty.
“The situation in the country has been bad for a long time,” CJP Bandial remarked.
Meanwhile, defence secretary asked for time till tomorrow for the submition of reply.
CJP Bandial then directed the official to give a report after a few hours or by tomorrow morning, while ordering finance secretary to inform about the funds.
