Uzair Ali describes possibly a turning point of the Judicial angle
It was long described that all governance organs of the state from the Judicial angle are on a war path and there is hardly any singular authority in place that can keep the balance of neutrality. It was also mentioned that the struggle witnessed by the country currently was simply close-ended with no wider motives but preservation of the turf of the organisational structure of the state. This state of affairs was not only the outcome of the scary polarisation of the polity but also increasing it manifold. It was becoming very visible that the will to compromise had simply evaporated and the conflict would not end before its conclusion however ugly and scary that comes out to be. The segments involved in the ongoing fight reveal their complete dissociation from the overall situation prevailing in the country and are willingly neglecting the after-effects of their misplaced fight. This unfortunate tug of war appears unending with no prospects of its resolution as it has spread over to the entire social make-up of the country.
The existing conflict has been exacerbated by the verdict given by a three-member bench of the Supreme Court (SC) declaring 22 March order of the Election Commission of Pakistan (ECP) postponing the Punjab Assembly elections to 8 October was unconstitutional, without lawful authority or jurisdiction, void ab-initio, [and] of no legal effect. The reserved verdict was issued by a three-member bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprising Justice Munib Akhtar and Justice Ijazul Ahsan. Along with restoring the election issued by the ECP on 8 March the SC also made certain modifications and stated that last date for filing appeals against decision of the returning officer rejecting/accepting the nomination papers is 10 April and the last date for deciding on appeals by the Appellate Tribunal is 17 April. It continued that the revised list of candidates will be published on 18 April and that 19 April will be the last date for the withdrawal of candidature and publication of the revised list of candidates. It added that the electoral symbols will be allotted to contesting candidates on 20 April and polling will be held on 14 May.
The court noted that the ECP had categorically stated that if it was provided with necessary aid and assistance by the executive authorities in the provinces and Centre, then the commission would be able to organise and conduct the general elections to the Punjab and Khyber Pakhtunkhwa (KP) assemblies honestly and consequently the court directed the federal government to release election funds worth Rs.21 billion to the ECP by 10 April for elections to the assemblies of Punjab and KP. It directed the ECP to utilise the funds for elections to the Punjab Assembly in the first instance and added that if there was a shortfall in funds for polls in KP later, the ECP may make an appropriate representation to this court for such consideration and orders as deemed appropriate. The court also instructed the Punjab caretaker government, inspector general and chief secretary to provide the electoral body with a security plan by 10 April. It warned that if the Centre or the Punjab caretaker government failed to provide aid and assistance to the ECP, the commission could approach the court and an appropriate order would be passed on the matter.
Not only the Supreme Court dismissed the ECP order but also brought forward the election date to 14 May, issued a revised schedule and set hard deadlines for the release of funds and finalisation of security plans. It has also opened the door for appeals against the similar postponement of the KP polls. This in ordinary parlance could very well be considered that the court took over the authority of another statutory body, ECP and also assumed unilateral charge of the administrative duties of the executive organ of the state. Interestingly the court’s verdict was widely accepted to be delivered in the shape that it was, and though it did not cross the demarcated constitutional line dictating holding elections within the 90-day deadline but the decision of the Chief Justice to issue this verdict through a diminished bench has worsened both the divisions within his institution as well as the ongoing stand-off with the incumbent government. It must he kept in mind that government and the ECP had adopted very similar lines of argument to repeatedly press the chief justice to convene a full court to hear the elections delay case along with objecting to the chief justice taking suo motu notice of the original delay caused by the Punjab and KP governors’ unwillingness to issue election dates and argued that it would be better for the full court to speak as one voice on the matter.
It is now very evident that their demand became especially pertinent after multiple Supreme Court justices made observations or issued opinions challenging the chief justice’s one-man show in appointing benches and taking suo motu notice. It is now widely accepted that forming a full court may have allayed the impression of deliberate inconsistencies undertaken by the SC in this respect that are now raising their head causing a deep distrust within political circles. Not only that the verdict has given rise to controversies but it has also indicated that the differences between the top judges may have hardened and may be far from being resolved. Actually the gist of the argument put forward by dissenting judges hardly pertains to questioning the 90-day election deadline but the chief justice’s sole discretion over suo motu powers and the way the benches have been formed. In any case however the judgment regarding the following the deadline is very relevant but the issue is much larger than that and it is earnestly hoped that the chief justice may still come forward and salvage as ignoring dissenting voices emerging from within the court may seriously imperil the cause of justice.
The reaction from the coalition was swift and it was expected to be but it focused on the turning down their request to form a full court on the matter. It was quite obvious therefore that the matter would be taken up in the parliament with the result that the National Assembly passed a resolution rejecting the verdict. It was actually the concerns about the suo moto powers of the chief justice that disturbed the political circles. It was this worry that witnessed the Senate pass the Supreme Court (Practice and Procedure) Bill 2023 aimed at depriving the chief justice of powers to take suo motu notice in an individual capacity. It was quite clear that the political circles viewed the encroaching approach of the SC with trepidation and raised questions about forming a full court or larger bench deciding the maintainability of the elections delay case as this issue had already created friction within the apex court with several other Supreme Court justices publicly objecting to the chief justice invoking suo motu jurisdiction on the matter and then constituting the benches to hear it at his own discretion. In yet another twist to holding provincial elections in the country, Justice Athar Minallah of the Supreme Court (SC) released his detailed note on the suo motu notice proceedings on the delay in holding polls in Khyber Pakhtunkhwa and Punjab, saying that the case was dismissed 4-3. He said that he agreed with the dissenting note in the suo motu case adding that the court must always show extreme restraint in matters which involve political stakeholders. TW