File photo. Farooq Naeem—AFP
A three-member bench of the Supreme Court—down from an earlier five-member bench—on Friday rejected the government’s request to form a full court bench to hear the ongoing case on delays to general elections in Punjab and Khyber-Pakhtunkhwa.
Led by Chief Justice of Pakistan (CJP) Umar Ata Bandial, and including Justices Ijazul Ahsan and Munib Akhtar, the bench rejected Attorney General for Pakistan (AGP) Mansoor Usman Awan’s request for a full court bench to hear the case. Earlier, it also dismissed a similar request from the Pakistan Bar Council, with the CJP saying the court would hear from the body at a later stage.
Responding to rampant discussion on the visible rift within the superior judiciary, the CJP claimed that “despite differences,” relations between judges were fine. Lamenting that the media sometimes exaggerated or misreported certain situations, he claimed that he would meet with relevant stakeholders over the weekend and expected Monday to bring “good news.”
During proceedings, the AGP urged the court to grant time for political tensions to subside, saying that was the only way for the situation to ease. The CJP, meanwhile, remarked that the 90-day deadline for polls in Punjab and Khyber-Pakhtunkhwa would end in a few weeks and April 30, the date announced by President Arif Alvi for polls in Punjab, was already in violation.
“If the president had an idea about the [financial, security] situation then he would not have given the April 30 date,” he said, adding that the issue before the court was why Oct. 8 had been set as the polls date. “The court did not sit to create problems. Tell the court a solid reason or start a dialogue [between political forces],” he said, urging the government to “forget the past.”
The court is willing to grant a recess of a few days if the government is willing to deliberate on a date for polls with the opposition, the CJP said, adding that if no dialogue were held, then the apex court would perform its constitutional role.
“After seeing the court decision, you will say that it is an independent decision. Each side’s points will be mentioned in the decision,” said the CJP, noting that he had been asked to reconstitute the bench and could have done so if he wanted to. “If you want to do that, that would be an invasion of our privacy,” he said, with the AGP noting that the CJP had stated judges did not recuse themselves from the hearing.
“I did not say anything about judges’ recusal,” clarified the CJP. “We judges will discuss the matter of stopping the hearing,” he said, maintaining the internal discussions of judges should be not made public.
The AGP, meanwhile, reiterated the government’s request to form a full court bench, with the CJP granting him permission to argue in its favor. “Full court issue was on my mind. However, before forming the full court, it is necessary to look at some factors,” he said, adding that one factor was to avoid affecting routine functioning of the court.
“While forming the nine-member bench, I thought that all the judges from senior to new should be represented,” he said, lamenting that a full court case had dealt with Justice Qazi Faez Isa’s reference from 2019-2021 and it had to face repercussions for it.
“You may ask why Justice Mazahar Ali Akbar Naqvi was included in the nine-member bench,” said the CJP. “If the CJP wishes to talk about it then he may do so,” the AGP responded. “Adding Justice Mazahar Naqvi [to the bench] was to send a silent message to someone,” he said, without any further clarification. Justice Naqvi is currently facing a judicial reference over a leaked conversation in which he is allegedly speaking with former Punjab chief minister Parvez Elahi, as well as allegations of assets beyond means.
Lamenting that judges were being targeted “based on hearsay” over a political case, the CJP maintained that the Supreme Court was “united” and lamented that people did not appreciate how such situations impacted the judges. “I am being asked to punish one more judge. First go and evaluate those facts,” he said, without acknowledging his own role in the trial against Justice Isa.
“If you talk about the law, I will listen as a judge. If you talk about my judges, then you will have to face me,” said CJP Bandial.
At this point, Irfan Qadri, representing the Election Commission of Pakistan (ECP), said his client’s point of view had not yet been heard. “I only want to speak for three minutes. I have to sit for hours; if you can get emotional, I can too,” he said. “We will listen to you. You spoke about three minutes,” the chief justice told Qadir. “Not three minutes, I will be even briefer,” Qadir said.
Urging the AGP to continue his arguments, the CJP remarked that a security threat was insufficient to delay polls, as the country had been dealing with terrorism since the 1990s. “The court was told that the forces are busy at the border. This has to be looked into as well,” he said. The AGP, meanwhile, noted that basis of the current plea was the court order of March 1, which had been made controversial over whether it was a 4-3 or 3-2 verdict. “The basis of the current application is the court order of March 1,” he said, adding that two members of the nine-member bench had voluntarily recused themselves.
“Who told you that two judges recused themselves from the bench? Read the court’s Feb. 27 order, where is it written?” the CJP asked the attorney general, and directed him to discuss the issues with security and finances.
The AGP said he would give his arguments after the CJP was done listening to political parties. “I’ll inform the court about the country’s economic situation,” he said. To which the CJP said the bench would listen to the parties’ lawyers, but wished to listen to the state first.
During the proceedings, Justice Munib Akhtar questioned the AGP on whether the elections could even be postponed until Oct. 8. The AGP clarified that the issue was not just of Rs. 20 billion, but the entire economy, as the country was facing a deficit of Rs. 1,500 billion. “The central bank interest rate can go up to 22 percent by June 30. An increase in interest rate also hikes up debt,” he said.
“Does the new rate of interest also apply to past loans?” the chief justice asked. “How much money does the government have at the moment? How much money is there in the federal consolidated funds? How much will the deficit increase if Rs. 20 billion is spent?” Justice Akhtar asked, remarking that election expenses were probably less than 1 percent of the deficit.
The AGP responded by saying that Rs. 170 billion in revenue was expected from the supplementary budget if it were fully collected. “Who controls the federal consolidated funds,” Justice Akhtar asked. “The funds are under the finance ministry’s control,” the AGP responded.
The CJP then asked the AGP if the budget deficit would end by October to which Awan said the country expected to receive funds after the revival of the bailout agreement with the IMF. He also clarified that the government had not considered that polls would be held within the current fiscal year, and had not budgeted for it.
“Will the court accept the request to form full court request on this occasion?” he asked. “It seems you are getting emotional. We will provide time, if you need,” Justice Akhtar told the AGP. “The court should consider the request for full court in the meantime,” the AGP said.
The CJP maintained that “time would be wasted” by forming a new bench, adding that the court needed confirmation from the government on data provided by the ECP. “The Supreme Court Rules are clear that a bench of more than two members will hear cases falling under 184(3). The parties before the court are those who run the government,” he said, while issuing orders for defense secretary and finance secretary to attend the next hearing.
The AGP, meanwhile, said he had been instructed to discuss three issues, adding that the parties should be granted till Monday to pursue dialogue. Justice Akhtar, however, described as “very serious” any allegation that “favorite” benches were being formed. To this, the AGP said no one would be able to object to any decision written by all the judges.
The CJP said that no regulation or law allowed the constitution of a full court. “An application can only be submitted to constitute a full court,” AGP Awan said.
The chief justice then adjourned proceedings until Monday, while urging the AGP to secure guarantees from all parties that they would remain peaceful until the elections.