May 16, 2023
ISLAMABAD – Chief Justice of Pakistan (CJP) Umar Ata Bandial on Monday remained hopeful that talks between the coalition government and the PTI could end the stalemate on holding elections in the country.
The matter came under discussion as a three-member bench heard the Election Commission of Pakistan’s (ECP) plea asking the top court to revisit its April 4 order of holding elections to the Punjab Assembly on May 14.
The petition was heard a day after the court-ordered election deadline lapsed and the same day that the Pakistan Democratic Movement (PDM) is staging a protest outside the SC against the judiciary for allegedly favouring PTI chief Imran Khan.
The bench comprised Chief Justice of Pakistan Umar Ata Bandial and Justices Ijazul Ahsan and Munib Akhtar, the same bench that had issued the order for holding elections in Punjab on May 14.
During the hearing, the CJP observed that the electoral watchdog had raised the issue of funds and security previously. “[But] today, the ECP has raised a question [mark] regarding the court’s jurisdiction,” he said.
He further said that the ECP had earlier contended before the court that it would conduct elections once funds were issued. “Now, the election commission has opened a Pandora’s box,” he said, questioning whether the ECP could raise points which were not raised before.
PTI lawyer Ali Zafar contended before the court that the scope of a review petition was limited. “New points can’t be raised in a review petition,” he pointed out.
Calling on the court to enforce its April 4 order, Zafar said May 14 had passed and the Constitution had been “murdered”, adding that the caretaker governments in Punjab and KP were “unconstitutional”.
“The order will be implemented once it is finalised,” the CJP responded.
The CJP then said that the court wanted to hear the ECP’s arguments on the maintainability of the petition. He said that notices would also be issued to the provincial governments and other political parties.
Justice Bandial further said that the manner in which political powers were operating “is not correct”.
“People are losing their lives. Institutions are facing risks and threats,” he said. “My advice to everyone is to play a role in bringing about a peaceful environment.”
In an apparent reference to the protesters gathered outside the SC, Justice Bandial said, “Look at the situation outside the SC. What is happening outside, who will implement the Constitution?”
He went on to say that people were “scaling the gates” and the federal government was aiding them. “The Constitution is the basis of democracy. We want peace in the country,” he said.
“National institutions and assets are being set ablaze. Look at what is happening [in the country] for the past four or five days. Despite this, we are still working,” CJP Bandial said.
He then asked Attorney General of Pakistan (AGP) Mansoor Usman Awan why negotiations were not being held between the government and the PTI. “You (AGP) should look at the negotiation process again,” he said.
“Implementation of the Constitution is imperative [but] how can it be implemented in such a situation?” he asked. Justice Bandial also stated that he was the first person to suggest talks between the two opposing sides regarding holding elections in the country.
“Attorney general sahib, why can’t you restart negotiations [with the PTI]?” the CJP asked. However, at this, the PTI’s lawyer interjected and said that two members of the party’s negotiating team had been arrested.
The AGP contended that the government had taken the matter of holding negotiations “seriously”. He alleged that the PTI had ended the talks between the two sides.
Justice Bandial said that the Constitution guaranteed political rights. “We don’t want to get into political matters and we don’t want to hear anything. We hope that negotiations will start again and a solution will be reached.”
The top judge called on the AGP to inform his “clients” in this regard. “We expect from both the parties that the [political] environment will improve,” he said.
Meanwhile, the PTI’s lawyer contended that a “so-called” democratic movement had issued directives to arrest the PTI chief. At this, the AGP pointed out the violent protests that followed Imran’s arrest.
However, the CJP insisted that the process for dialogue be initiated once again. He called for addressing the narratives being put forward by both sides.
“Ali Zafar is correct in saying that the ball is in the government’s court,” the CJP remarked. The PTI lawyer can talk to his leadership if the government invites the opposition for talks, Justice Bandial added.
The top judge said that peace was necessary for the implementation of fundamental rights. He said that the economy had come to a halt and the people were afraid to leave their homes.
“Who will accept the results of elections if society is divided?” he asked. “Do you think the court has forgotten that the 90-day limit is the basis of the Constitution?”
He further said that the court understood how fundamental rights were to be implemented.
“We are sitting here to protect the people’s rights. If their rights are protected, the people will be happy,” he observed. He said that he had seen that the country’s motorways were deserted and the economy had come to a grinding halt. “The people are ultimately losing in this situation.”
He also told the PTI lawyer to talk to the party’s leadership regarding how elections could be held in such a “polarised” scenario. “You will have to create a high moral ground,” Justice Bandial said, adding that holding elections in 90 days was the main matter.
The AGP then asked the court to adjourn the hearing till next week, following which it was adjourned till May 23 (Tuesday). The court also issued notices to the AGP, and the Punjab and KP advocate generals.
PTI had started dialogue with ‘sincerity’, PTI lawyer says
Recounting today’s court proceedings while speaking to the media after the hearing wrapped up, Zafar lamented that although the Supreme Court had advised the government and the PTI to restart their dialogue, two members of the PTI’s dialogue committee were under arrest.
“The court observed that though it is hearing the case, political parties should also play their role and the dialogue process that had been [abandoned] should be restarted.”
Asserting that the PTI had taken part in the talks “with sincerity”, he said that he informed the apex court that leaders involved in the dialogue — Shah Mahmood Qureshi and Fawad Chaudhry — had been arrested.
Zafar highlighted that during today’s hearing the CJP also told the attorney general that there should be some initiative from his side as well.
April 4 judgment
In a unanimous judgment on April 4, the bench had quashed the electoral body’s decision to extend the date for polls in the province from April 10 to Oct 8 and fixed May 14 as the new date.
It had also directed the federal government to release Rs21 billion for elections in Punjab and Khyber Pakhtunkhwa and to provide a security plan to the ECP regarding the polls. Moreover, the court had instructed relevant authorities to keep it in the loop.
However, in reports submitted to the apex court in subsequent days, the ECP had said the ruling coalition was reluctant in releasing the funds.
It had contended that staggering polls by holding them in Punjab and KP separately, before elsewhere, was not feasible since it would incur more expenses compared to holding the exercise on one day. It had further said that an already depleted security apparatus would require weeks in advance for its mobilisation.
On May 3, with fewer than two weeks to the May 14 election date, the election commission had filed its plea seeking a review of the court’s April 4 order.
The review petition, filed through Advocate Sajeel Shehryar Swati, was submitted a day after the government and PTI developed a consensus on holding elections across the country on the same day. Both parties, however, had failed to agree on a date for the elections.
Elections impasse
The deadlock over the holding of elections in two provinces arose after the PTI dissolved its governments in Khyber Pakhtunkhwa and Punjab in January.
According to the Constitution, once an assembly is dissolved prior to completing its term, general elections for the house are to be held within 90 days from the date of dissolution.
The crisis began when despite the passage of almost 40 days since the assemblies were dissolved, the ECP and governors in both provinces did not give a date for polls. During this time, the Lahore High Court (LHC) had ordered the holding of polls in Punjab within the constitutionally stipulated timeframe but both the ECP and the governor filed an intra-court appeal, asking for clarity on who was supposed to finalise the date for polling.
The Peshawar High Court, on the other hand, was also hearing a petition asking for polls to be held in KP within the stipulated timeframe.
On Feb 22, the Supreme Court sprang into action, taking suo motu notice of the delay in announcing elections in the two provinces.
This began a long and dramatic chain of events — during which clear divisions and conflicts became visible within judges of the country’s top court — that eventually ended with the three-member bench’s verdict on April 4, ordering polls in Punjab to be held on May 14 and directing the federal government to release Rs21 billion for the exercise.
The top court did not give a decision on polls in KP, asking the petitioners to approach the Peshawar High Court on the matter.
However, despite the SC’s order on Punjab polls, the government failed to release the funds and till date maintains that elections to the National Assembly and all provincial assemblies be held on the same day.
On April 10 — the initial deadline set by the top court for the release of funds — Finance Minister Ishaq Dar tabled a money bill in the NA, seeking funds for conducting polls in Punjab and KP. The bill, titled Charged Sums for General Election (Provincial Assemblies of the Punjab and the Khyber Pakhtunkhwa) Bill 2023, was subsequently rejected by the NA.
Prior to that, the government-dominated standing committees of both Houses of parliament also rejected the bill in their separate meetings.
The matter was then again taken up by the apex court, which directed the State Bank of Pakistan (SBP) to provide funds to the ECP for Punjab and KP polls by April 17.
The court directed the SBP to release funds worth Rs21bn for elections from Account No I — a principal component of the Federal Consolidated Fund (FCF) worth Rs1.39 trillion — and send an “appropriate communication” to this effect to the finance ministry by April 17.
Following the top court’s orders, the central bank allocated the funds and sought the finance ministry’s nod to release the amount to the ECP. But, the government’s approval was required to release the amount from the FCF while the government said it had to get the National Assembly’s approval for its release.
Subsequently, on April 17, the coalition government managed through the NA yet another rejection of its own demand for the provision of Rs21bn as a supplementary grant to the ECP for holding polls in the two provinces — defying the SC’s third directive for the release of funds for the purpose.
A day later the SC, while hearing a defence ministry plea for same-day polls, warned the government of “serious consequences” if it failed to release the funds required for conducting polls in Punjab and KP. It had also said that since 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,” the order said, adding that when viewed from this perspective, the NA’s rejection of the demand to release poll funds held “serious constitutional implications”.
On April 26, National Assembly Speaker Raja Pervaiz Ashraf — to convey the “sentiments and thoughts” of members of the House about the court’s orders on elections in Punjab and Khyber Pakhtunkhwa — wrote a letter to CJP in which he urged the higher judiciary to “exercise restraint” and respect parliament’s legislative domain.
A day later, the SC granted temporary respite to the country’s main political parties and gave them time to hold dialogue on elections.
The talks between the PTI and the government were aimed at developing a consensus on a date for elections in one go across the country. After three rounds of talks, Ishaq Dar — who was leading the government side — told reporters on May 2 that both sides had agreed to hold elections to the national and provincial assemblies on a single date under the watch of caretaker setups, but it had yet to be decided what that date would be.
But while the finance minister and former prime minister Yousuf Raza Gilani claimed positive headway in the sitting, with both sides showing flexibility, PTI leader Shah Mehmood Qureshi regretted that no decision could be taken on “practicable proposals” put forward by his party.
Subsequently, the PTI told the SC in a report that no solution could be arrived at and asked it to implement its order for holding polls in Punjab on May 14.
In the four-page report, submitted a day after the two sides concluded the make-or-break round of the much-awaited negotiations on polls, the PTI told the top court that “in spite of the best efforts of parties, no solution within the Constitution” was found.