Chief Justice of Pakistan (CJP) Umar Ata Bandial on Wednesday asked the Election Commission of Pakistan (ECP) why it didn’t advise President Arif Alvi regarding holding polls across the country on one day.

The question was raised as a three-member bench of the Supreme Court (SC) heard the electoral body’s petition asking the top court to revisit its April 4 order of holding polls to the Punjab Assembly on May 14.

The bench comprised CJP 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 top judge noted that the ECP didn’t brief the president about the security measures or allocation of funds for elections.

“Without mentioning the ground realities, more powers are being sought under Article 218(3) [of the Constitution],” he said. “When the Constitution gives powers, keep your eyes and mind open before using them.”

Article 213(3) of the Constitution hands the ECP the responsibility of organising and conducting elections by making arrangements that ensure polls are conducted honestly, justly, fairly and in accordance with the law.

It should be noted that earlier this year, the commission had sought amendments to the Elections Act, 2017, to do away with the president’s role in determining the date for general polls. It had said that the role of the president to appoint a date for polls in case of dissolution of the National Assembly on the advice of the prime minister or the dissolution of the National Assembly on expiry of the term was not supported by any constitutional provision.

The hearing

At the outset of the hearing today, Attorney General for Pakistan (AGP) Mansoor Usman Awan came to the rostrum. “A day earlier, the court had asked why the points highlighted by the ECP in its review petition were not raised earlier,” he said.

Awan also mentioned the SC’s remarks regarding the government being adamant about the 3-4 majority order. “I want to say this that the argument of elections in one province affecting National Assembly polls was put forward previously as well.

“We had also mentioned the majority judgment in our response,” the AGP said.

Here, the CJP remarked: “You should not worry. We are sitting here to hear you. If a reasonable point is raised, we will review it and take a decision.”

Justice Bandial recalled that the jurisdiction of a review was discussed in court yesterday and said: “We will not use the past against the government … we are sitting here after rendering several sacrifices.

“Tell your colleagues not to say such things at the door of the court,” he added, reiterating that the court “is sitting quietly because we work for God alone”.

Referring to claims of the SC providing PTI Chairman Imran Khan with a Mercedes to appear before the court on May 11, Justice Bandial said that reports attributed to the court were not always accurate.

“I don’t even use a Mercedes myself,” he stated, adding that it was the police who had arranged the luxury car for the former premier.

The CJP also told the AGP to advise his colleagues against using harsh words in the Parliament. “We have welcomed you and even said ‘good to see you’,” he added.

Subsequently, ECP lawyer Sajeel Swati resumed presenting his arguments. He highlighted that the SC always interpreted the Constitution as a “living document”.

“The ultimate institution of justice is the Supreme Court, therefore its scope cannot be limited,” he said. “No other court has the authority to dispense complete justice and use Article 190.”

At that, the CJP asked if 150 years of court precedents had become ineffective. “According to the 150 years of judicial precedents, there is a difference between the scope of review and appeal. You didn’t respond to this question yesterday as well.”

Meanwhile, Justice Akhtar noted that if the ECP’s argument regarding the jurisdiction of a review and appeal was accepted, it would “nullify the Supreme Court rules”.

He highlighted that no amendments were made to the jurisdiction of review in SC rules yet. “If jurisdiction is expanded, it will reopen cases dating back several years,” he noted.

Justice Akhtar further questioned the lack of implementation of the Supreme Court rules pertaining to review, expressing concern over the potential ramifications if the argument was accepted. In his response, the ECP lawyer suggested that the time for filing a review should not be limited.

Justice Akhtar then asked Swati to give a solution to the points raised above, to which the latter said that the constitutional provision of reviewing rules could not be disrupted.

Here, Justice Ahsan pointed out that the scope of the review was clearly mentioned in the Supreme Court rules.

On the other hand, CJP Bandial observed that the use of Article 184(3) had increased a lot. “We have realised this can lead to mistakes.”

Addressing Swati, he said, “In your view, it is not right to limit the scope of revision and want it to be expanded.”

“We will take an opinion from the AGP in this regard,” Justice Bandial stated and directed the ECP lawyer to present his arguments on the “actual case”.

The CJP then asked the electoral body why it didn’t advise the president to hold one-day polls and pointed out that Alvi was kept unaware of security and funds for polls. “The president was not told about the 1970 elections nor Article 218(3).”

For his part, Swati provided examples of cases from the past in which the court had utilised Articles 184(3) and 187, which pertain to the jurisdiction of the SC and execution of processes of the court.

“Even in the judges’ case, the court had changed its decision itself,” the lawyer said.

However, Justice Bandial contended here that the review in the judges’ case was done through a suo motu notice.

The court subsequently adjourned the hearing till 12pm tomorrow (Thursday).

Over 50pc of population without any representative: PTI counsel

Talking to the media after the proceedings concluded, PTI’s Barrister Ali Zafar said that more than 50 per cent of the nation did not have any representatives to pass legislation, and thus was deprived of their fundamental rights.

He stated that in such a situation, “the actions of the caretaker governments in Punjab and Khyber Pakhtunkhwa, and their actions are unconstitutional”.

Recounting today’s hearing, Zafar said that although the court observed that the “law does not allow you to have arguments that you did not before”, it assured the parties that all their stance would be heard as it was a “constitutional matter relating to the nation and of the citizens’ fundamental rights”.

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 to 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.