April 20, 2023
ISLAMABAD – The Supreme Court on Wednesday declared as inadmissible for hearing the defence ministry’s plea to hold general elections across Pakistan simultaneously upon completion of the terms of the national as well as Sindh and Balochistan assemblies.
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.
A three-judge bench comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar heard the petition.
A day earlier, the defence ministry filed an application in the SC, requesting the top court to recall its April 4 order that had fixed May 14 as the election date for the Punjab Assembly.
The application asked the apex court to issue directives that general elections to the national and all provincial assemblies be held on the same date.
Along with the application, the defence ministry also issued a report in court, laid before the SC in compliance with its directives to the State Bank of Pakistan (SBP) and other departments to furnish reports after releasing Rs21 billion to the ECP for holding elections to the Punjab and KP assemblies.
In its report, the ministry highlighted the need of holding the elections on the same day given the heightened security situation in the country. It also said that the armed forces would be able to carry out election duties by early October.
“Due to the prevalent security situation and counter-terrorism operations being carried out in KP and Balochistan as well as the intelligence-based operations in Punjab and Sindh, the armed forces, Rangers, Frontier Constabulary and other forces are not logistically available to be repositioned and re-posted for providing election security, twice in six months,” the report said.
“Significant time is required to prepare the members of the armed forces for the election duty, given much of the force has been actively engaged in operations for a considerable period of time,” the application said, adding the security situation in Punjab and Sindh has been stable in the light of the efforts of the ongoing operations in KP and Balochistan, respectively.
Therefore, any diversion of troops from KP and Balochistan will result in directly affecting the security situation in Punjab and Sindh, the application explained.
The court order, a copy of which is available with Dawn.com, said that it was pointed out to the attorney general that the 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”.
Regarding the compliance report from the Finance Division on providing the funds for the polls, the order reiterated the proceedings pertaining to it in the cabinet and National Assembly, adding that the division said the funds could not be made available to the election commission since the NA had rejected the motion.
The order noted 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 and the normal practice was for the statement to be laid before the NA.
The order said 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 further said that the AGP had not attempted to “seriously dispute” this position.
The order further said 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.
“To the extent therefore that the report of the Finance Division concludes, or proceeds on the basis that, the federal government did not itself have the requisite constitutional authority and power at all times to authorise the expenditure of Rs21bn for the general elections, it cannot be accepted,” the order reads.
Addressing the cabinet’s decision to refer the release of funds to the NA, the order said: “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.”
It added 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 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 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.
“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 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 Rs21bn 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 order reads.
The order also rejected a plea from the election commission for the poll date to be restored to Oct 8 as being non-maintainable, saying that it was impermissible to attempt to reopen issues and questions that were already decided.
Today’s hearing
At the outset of today’s hearing, Attorney General for Pakistan (AGP) Mansoor Usman Awan was called to the rostrum and asked to read the finance ministry’s report out loud in the courtroom.
CJP Bandial remarked that the government had said that the funds required for conducting polls would be issued via a supplementary grant. “On the contrary, the matter was sent to parliament,” he remarked.
The AGP told the court that the NA Standing Committee on Finance and Revenue had referred the matter to the cabinet and parliament.
At this, Justice Akhtar remarked that a majority of the committee’s members were part of the government. He also asked how the government could be barred from approving a grant.
He said that the prime minister should have a majority in the NA and that it was mandatory to have a majority in “financial matters”.
He went on to say that the Constitution gave the government the right to issue a supplementary grant and questioned how the assembly could intervene.
Taking post-facto approval of the grant would have been “risky”, the AGP replied. He said that in the current case, there was sufficient time to seek the NA’s approval before issuing the supplementary grant.
“The finance ministry’s team said, again and again, that approval for the supplementary grant could be sought later,” Justice Akhtar said, adding that the ministry had referenced Article 84 of the Constitution. He again wondered how the supplementary grant could be rejected by the NA.
“Are you aware of the consequences of rejecting a supplementary budget? First, answer this question then [we] will move forward,” Justice Akhtar said.
AGP Awan stated that the right to approve a supplementary grant lay with parliament. He said that the NA had already expressed its opinion regarding the matter at hand through a resolution.
“If the government was serious, could it not have gotten the supplementary grant approved?” Justice Akhtar asked. The AGP replied that if post-facto approval was not granted, then the expenses would be classified as “unconstitutional”.
“It is imperative for the premier to have a majority in the NA. AGP sahab try to understand, the matter is very serious,” Justice Akhtar said.
CJP Bandial remarked that there was no previous instance of referring administrative matters to the relevant standing committee. He added that the funds spent on election were a “necessary” expenditure.
“It is expected that the government will review its decision,” he said, adding that the government should either decide or again refer the matter to the NA. The AGP was told to inform the government regarding the court’s directives.
During the hearing, the chief justice also observed that the electoral watchdog had stated that polls in Punjab and KP could not be conducted till October. He further noted that the ECP had called for holding elections simultaneously in the country and had cited the security situation.
CJP Bandial said that several questions arose from the ECP’s stance. “Terrorism is ongoing in the country since 1992,” he said, noting that polls had been held in the country despite this.
He observed that the situation was particularly sensitive in 2008, adding that ex-prime minister Benazir Bhutto was assassinated in 2007. He questioned what new danger there was for not holding polls in the country.
The AGP replied and said that in the past security forces had performed their duties at one time. “Now, elections will take place in two provinces separately,” he said.
“What guarantee is there that the situation will improve by October 8?” the CJP asked, adding that the defence ministry had also made an estimate. “The government cannot function on mere estimates,” he said.
The SC then sought another response from the government regarding the provision of funds for holding elections in Punjab and KP. “Failure to provide funds could have serious consequences,” the CJP remarked.
Justice Ahsan remarked that timely elections were held in Britain during a time of war. Polls were held in Britain even while bomb blasts, he said. He asked where the government had the right to delay polls.
Justice Ahsan observed that the top court’s directives regarding funds for polls were being sent from one place to another. He also asked what guarantee there was that elections would be held on October 8.
The AGP replied and said that security forces were responsible for dealing with external threats. He said that since 2001, security forces were busy at the country’s borders.
At one point, Justice Akhtar asked whether the army came to the civil government’s aid under Article 245 of the Constitution.
Article 245 of the Constitution says, “The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so.”
It further says, “The validity of any direction issued by the Federal Government under clause (1), shall not be called in question in any Court.”
The AGP responded that fundamental rights are suspended under Article 245.
Justice Akhtar then asked whether fundamental rights were suspended during the 2008 polls. He also asked why the government was not exercising its powers under Article 245. “Is the Constitution not supreme?” he asked.
The chief justice observed that top court proceedings regarding the matter at hand began on March 27 and wrapped up on April 4. “First it was a matter of 4-3 and then of a full court,” he remarked, adding that while there was a “boycott” of proceedings, no one raised the issue of security.
The AGP said that the director general of military operations gave a briefing at his request.
CJP Bandial remarked that the Inter-Services Intelligence (ISI) chief and the defence secretary were also present in the briefing. He said that the officials were told that this matter was not raised during the hearing. “Everyone was told that [the matter] has been decided and we cannot go back on it,” he said.
CJP Bandial said the requests by the ECP and the defence ministry were not sufficient to withdraw the directives. He said that the ECP had initially said that it would conduct polls if it was provided with funds. “Now, they are saying anarchy will spread in the country,” he said, adding that the electoral watchdog wished to open the whole case once again.
Commenting on the report submitted by the defence ministry, the CJP said that it had a “strange” stance. “Can the ministry of defence make a request to hold elections simultaneously in the country?” he asked, terming the ministry’s plea to be “not maintainable”.
AGP Awan said Foreign Minister Bilawal Bhutto-Zardari had called on Prime Minister Shehbaz Sharif in Islamabad yesterday, adding that efforts were afoot to initiate political dialogue. All ruling parties, apart from one, are willing to talk with the PTI, he said. He added that Bilawal would meet with the Jamiat Ulema-i-Islam-Fazl chief Maulana Fazlur Rehman in this regard today to convince him of negotiations.
He said that if matters were resolved then there might not be a need for so much security. Awan added that the matter could be resolved if the court gave some time.
CJP Bandial said that the AGP’s stance had some weight. He said that the court could “make some room” if all political parties were united in their stance.
The chief justice said that the matters could not be delayed further since the Eidul Fitr holidays were near, adding that his fellow judges thought that the five days were enough to settle matters.
Advocate Shah Khawar pointed out here that the apex court’s orders were not implemented for one reason or the other, adding that their implementation was necessary.
“People are confused and tense. The application is filed to rid the people of their agitated state. The entire country should have elections at the same time. Many complications will arise if elections are held separately,” he said, adding that provincial governments would influence the polls.
Here, CJP Bandial questioned him why the AGP had not raised this point instead of focusing on the matter of the 4-3 verdict. “We will ask the AGP who prevented him from taking this stance,” the chief justice said to which Khawar said the conditions could still be ideal if political parties united.
“If it is about the negotiations then you can’t be stubborn about Oct 8. Nothing can be unilateral, political parties will have to have a bigger heart. The 90-day period [for holding elections] has passed on April 14,” the chief justice said, adding that it was constitutionally mandated to hold elections within 90 days of an assembly’s dissolution.
“You think this is a matter of political justice in which the decision will be made by the people. You are suggesting that the political parties should negotiate. The government did not respond when the court asked for assurance. The government spoke positively for the first time today,” CJP Bandial observed and said the court was issuing a notice to political parties for tomorrow (Thursday).
The chief justice pointed out that a question was also raised on the continued tenure of caretaker governments beyond 90 days.
Meanwhile, AGP Awan requested the court to provide respite to political parties.
The court subsequently called Faisal Chaudhry to the rostrum and he was asked whether the PTI was willing to negotiate to which he replied: “Siraj ul Haq came to Zaman Park and the next day our party’s Sindh president (Ali Zaidi) was arrested.”
The chief justice remarked that a “level playing field” for the polls could be achieved if all political parties were satisfied on an election date. “Look at the pain and anxiety caused to the nation,” he added.
Chaudhry responded that the nation was looking towards the apex court and had high hopes for it.
Chaudhry said that as per media reports, the PTI had formed a three-member committee.
“The interior minister threatens the court after every hour. The interior minister says: ‘Elections will not be held on May 14 no matter what anyone dies,’” he said, to which the chief justice said that the order for polls on May 14 would be implemented if political consensus was achieved.
“Do you want clashes on the streets? If the political process does not progress then there may be a clash in the election,” he said.
Separately, Justice Ahsan said that both parties in the matter would have to take steps to “reduce the political temperature” and ordered that the court be briefed after taking instructions from party leaders, adding that it was possible the court summoned the leadership of all political parties.
The court dismissed the defence ministry’s plea as being inadmissible with the chief justice saying that the media was ordered to run the news that the hearing would take place tomorrow and senior political leaders of parties should also appear.
The chief justice said that if Eidul Fitr fell on Saturday then the court would hold a hearing on Friday. “The main issue is that we have given the date of May 14, if there is a solution then better, otherwise the date is already fixed,” he remarked.
The hearing was subsequently adjourned to 11:30am tomorrow (Thursday) with the leadership of political parties summoned as well.
Executive-judiciary impasse on polls
Earlier this month, the SC had directed the government to provide Rs21 billion to the Election Commission of Pakistan (ECP) to conduct elections in Punjab and Khyber Pakhtunkhwa by April 10, and directed the electoral body to provide a report on whether or not the government complied with the order on April 11.
However, the government referred the matter to Parliament which defied the court’s orders and refused to issue the funds.
Last week, the electoral watchdog had submitted a report to the Supreme Court in a sealed envelope. Though the contents of the report are not known, a source privy to the information told Dawn that the one-page report informed the apex court about the government’s reluctance to issue the Rs21bn needed for the purpose.
Subsequently, the court had directed the SBP to release funds worth Rs21bn for elections from Account No I — a principal component of the Federal Consolidated Fund 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 on Monday allocated the funds and sought the finance ministry’s nod to release the amount.
The federal cabinet’s approval was required to release the amount from the FCF, while the government has to get the National Assembly’s approval for its release. But the same day, the coalition government managed through the NA the rejection of its own demand for the provision of Rs21bn as a supplementary grant to the ECP for holding polls in the two provinces.
On Tuesday, the ECP submitted a report in court saying that the staggering of elections in Punjab and Khyber Pakhtunkhwa was not feasible since it involved significant expenditures compared to holding of polls on the same day.
On the other hand, the finance ministry said that in the wake of the rejection on part of the National Assembly to a government-sponsored motion to grant Rs21bn to the federal government for meeting expenditures, other than charged, during the financial year ending June 30, 2023, in respect of the ECP for holding the elections in Punjab and KP, it was difficult to sanction the release of the funds.