ISLAMABAD: The Supreme Court is likely to announce its verdict on a PTI petition against a delay in Punjab Assembly elections today (Tuesday) after a three-member bench reserved the ruling, while refusing to entertain a request for a full court hearing into the matter.

Before it reserved the judgement, the three-judge bench took the wind out of the ruling coalition’s sails by asking whether they have trust in the bench or not.

“Have you withdrawn your boycott… if you want to argue then bring it in writing whether you have confidence in the bench or not,” observed Chief Justice of Pakistan (CJP) Umar Ata Bandial when Senator Farooq H Naek, who was representing the PPP, appeared before the bench in the morning.

The remarks by the top judge were in reference to a meeting of government allies in Lahore on Saturday, wherein the Pakistan Democratic Movement as well as its partners, dropped hints that they would not accept the court decision while expressing “complete no-confidence” in the bench.

Farooq Naek, however, tried to dissuade the bench by stating that the coalition partners had expressed reservations on the bench in view of the jurisdictional point of view by asking that a larger bench be formed to hear the matter.

Justice Munib Akhtar — a member of the bench while referring to the statement issued after the Lahore meeting — wondered if the ruling coalition did not trust the bench then how could they make a submission before the court.

While closing proceedings, the CJP regretted that it was rather a sense of loss that the court could not hear lawyers of the PDM partners, saying “political agendas” always come in the way during cases of political nature, resultantly depriving the court of able assistance from the other side.

Outside the top court, lawyers belonging to PTI and the ruling parties turned up in large numbers holding placards in support of the Constitution and rule of law, as well as expressing solidarity with the CJP.

However, the Pakistan Bar Council (PBC) distanced itself from the gathering, saying it did not ask lawyers to converge on Constitution Avenue.

No ‘constitutional disharmony’

When Attorney General for Pakistan (AGP) Mansoor Usman Awan was asked about his position, the AGP said there could be no constitutional disharmony between the executive and judicial branches. At this, the CJP observed that this was what could be expected from a “serious-minded” AGP.

However, the court closed its proceedings with a direction to Defence Secretary Hamood Zaman and Finance Additional Secretary Amir Mehmood to convince the court about the overwhelming impediments blocking the holding of the elections in Punjab.

The defence secretary requested the court for an in-camera briefing but the court asked him to furnish what he wanted to say in a sealed envelope which would be returned to him in the same manner.

During the hearing, the CJP again offered to slash the salary of judges as well as that of the Election Commission of Pakistan (ECP) from the employees-related expenditure head to bridge the gap of Rs20 billion required for polls.

CJP Bandial reiterated that the court was not here to create any difficulty for the government since it “understands that the entire burden would be on the judiciary” if any untoward incident happened during the elections.

“There is still time that the political parties should come to a settlement in the wake of acrimony and violence,” the CJP observed.

During the hearing, the CJP also mentioned his meeting with senior judges, like Justice Qazi Faez Isa and Justice Syed Mansoor Ali Shah, wherein issues faced by the judiciary were identified. The CJP also hinted that though a full court hearing was not possible, a full court meeting of all judges was possible that could be held soon for amendments to the Supreme Court Rules.

No recusals’

The AGP requested the bench the case should be heard by the other six judges who have not heard the election matter, or the current petition of PTI must also be dismissed given the majority judgement of 4-3 passed on March 1.

He stressed that the provincial governments of the Punjab and KP were dissolved to achieve a political objective i.e. to force general elections.

The AGP added that even though there was nothing wrong with such a political objective, under the constitutional scheme conducting free and fair general elections — likely to be held later this year — may not be possible in the presence of elected governments in Punjab and KP.

However, the CJP brushed aside the 4-3 controversy and said nobody had recused from the nine-judge bench, besides all judges had requested him to reconstitute the bench.

The bench was reconstituted by him using his discretion as the CJP for which he was not answerable, Justice Bandial said, adding the opinion of Justice Yahya Afridi and Justice Athar Minallah were part of the record but not a part of the judgement.

The CJP also rubbished the concept of order of the day in case of dissenting judgement by asking the AGP to come up with any law requiring the issuance of an order of the court.

Referring to the March 31 circular issued by the registrar, the CJP observed that Justice Qazi Faez Isa’s order was on the administrative side and expressed a desire to postpone all cases under Article 184(3) instead of mandatory directions.

Therefore, the circular had to be issued to disregard the direction, especially in light of an earlier five-judge order, he added. Justice Bandial further observed that the full court comprising 15 judges was not possible since all the judges were not available for already taking different stands.

Later, Irfan Qadir, who was representing ECP, urged the top court to resolve its internal conflict and added that this case of “immense importance should not be proceeded with”.

“I am not attacking the integrity of judges but there is some misconception about bias,” he said, stressing that the fundamental rights of a group or a political party should not be construed as the fundamental rights of the entire nation.

Mr Qadir also argued that the president’s announcement to hold the Punjab Assembly polls on April 30 was not legal since it was not done on the advice of the prime minister.

Published in Dawn, April 4th, 2023