Supreme Court’s Justice Munib Akhtar said on Tuesday that the rights of millions of people in the country were linked to elections and stressed that the public interest was in holding polls within 90 days.
“The rights of the people of Punjab and Khyber Pakhtunkhwa are connected to elections,” he remarked.
The judge passed these remarks as a three-member bench heard the Election Commission of Pakistan’s petition asking the top court to revisit its April 4 order of holding polls to the Punjab Assembly on May 14.
The bench hearing the plea comprised Chief Justice of Pakistan Umar Ata Bandial and Justices Ijazul Ahsan and Akhtar, the same bench that had issued the order for holding elections in Punjab on May 14.
During the previous hearing, Chief Justice of Pakistan (CJP) Umar Ata Bandial had expressed hope that talks between the coalition government and the PTI could end the stalemate on holding polls in the country.
The Court Hearing
At the commencement of today’s hearing, Sajeel Swati, the lawyer representing the Election Commission of Pakistan (ECP), approached the rostrum and informed the court that both the federal and Punjab governments had submitted their responses in the case, which the electoral watchdog had received today.
“I believe the Pakistan Tehreek-e-Insaf (PTI) has not yet submitted its response,” the Chief Justice of Pakistan (CJP) noted, to which Swati confirmed that the ECP had not received responses from the PTI or any other political party.
“Please allow us some time to review all the responses,” requested the ECP lawyer. However, Justice Bandial urged Swati to present his arguments in the case.
“If you wish to raise new points in the next hearing, you may do so,” remarked the Chief Justice, inquiring about the new grounds that could be considered in the review petition.
Subsequently, Swati began presenting his arguments. He argued that the jurisdiction of the ECP’s review petition was not limited to constitutional cases, stating that the Supreme Court’s jurisdiction could be expanded but not curtailed.
The lawyer asserted that in cases related to reviews, the Supreme Court’s jurisdiction is confined to civil and criminal matters.
Justice Ahsan interjected, pointing out that approaching courts for fundamental rights was considered a civil case. Swati argued that proceedings under Article 184(3) were not of a civil nature.
The judge responded by stating that one part of Article 184(3) falls under the purview of public interest, while the other pertains to fundamental rights.
“If a case related to elections comes to the Supreme Court from a high court, would it not be considered a civil case?” inquired Justice Munib, to which the ECP lawyer contended that the constitutional authority of a high court outweighed that of the apex court.
“According to your argument, if there is an appeal from the High Court, the jurisdiction is limited,” pointed out Justice Akhtar, addressing Swati. “However, in the review petition, you claim that the scope is not limited. Is this not discriminatory in cases involving fundamental rights?”
He also questioned why the Supreme Court would create ambiguity in its jurisdiction.
In response, the ECP lawyer stated that Article 184(3) did not grant the right to appeal, emphasizing that the scope of the review petition could not be restricted due to this limitation.
“The court must consider the requirements of justice during the review,” Swati continued, adding that new points could only be raised in constitutional cases.
“Are you arguing that a review under Article 184(3) should be treated as an appeal?” asked Justice Akhtar, to which the lawyer replied affirmatively. “In cases related to Article 184(3), the jurisdiction of review is not limited,” Swati added.
Meanwhile, Justice Ahsan expressed concern that accepting the ECP lawyer’s argument would lead to immediate hearings for reviews. “The Constitution does not state that the scope of the right to appeal and review is the same.”
Justice Munib also noted that accepting the ECP’s request would complicate matters further.
In response, Swati stated that the Constitution did not limit the scope either. “To ensure absolute justice in reviews, the court can also invoke Article 187 of the Constitution.”
At this point, the Chief Justice intervened. “Do not turn a review into an appeal. Article 184(3) of the Constitution does not grant the right to appeal. There should be clarity regarding the scope in the Constitution,” he emphasized.
The ECP lawyer then requested the court to issue a detailed order, stating that it would facilitate the proceedings.
On the other hand, Justice Bandial remarked that both the government and the electoral body were serious about the proceedings, recalling that the government had previously raised objections to the bench.
“They raised questions about a full court or the issue of the 3-4 judgment,” the CJP said, questioning Swati about why the same arguments were not presented earlier. “Has any other institution compelled the ECP to adopt this stance?”
Subsequently, the hearing was adjourned until 12 pm tomorrow (Wednesday).
PTI Response to ECP Petition
In the response submitted to the Supreme Court today, the PTI described the ECP’s review petition as “unjust” and “clearly outside its jurisdiction.”
“The ECP’s suggestion that the Supreme Court has ‘fixed’ the polling date itself and ‘assumed’ the role of a public body is completely incorrect and unjustified,” stated the PTI.
The party argued that the Supreme Court issued the April 4 order based on the Constitution when the ECP announced the withdrawal of the election program. According to the PTI, “neither the Constitution nor the law empowers the ECP to extend the date of the election beyond 90 days, as provided in Article 224(2) of the Constitution.”
The PTI dismissed the ECP’s allegation that the Supreme Court breached the principle of separation of powers, deeming it a “totally baseless accusation.” The party asserted that the interpretation and implementation of the Constitution were duties and obligations bestowed upon the Supreme Court by the Constitution itself.
The PTI also contested the ECP’s claim that it was empowered to announce the election date under Article 222 of the Constitution. It highlighted that the Supreme Court had already determined in a previous verdict that “the president is responsible for announcing the date of the Punjab Assembly election under Section 57 of the Election Act, 2017.”
The party stated that the Supreme Court had “already decided that there is no conflict between Section 57 and Article 222 of the Constitution, and the ECP does not have the power to set an election date.”
The response further challenged the ECP’s argument that the Supreme Court was not an appellate forum for ECP decisions. The PTI contended that ECP decisions were subject to the jurisdiction of the Supreme Court under Article 184(3) (original jurisdiction of the Supreme Court) of the Constitution, as well as Article 199 (jurisdiction of high court) of the Constitution.
Refuting the ECP’s reasoning that political parties were in conflict and security risks were significant, the PTI accused the ECP of urging the Supreme Court to invoke the doctrine of necessity, which it believed was outdated and cannot be revived.
The PTI also pointed out that the ECP’s statement contradicted its previous stance, where it had expressed willingness to conduct elections with adequate aid and security.
Regarding the ECP’s argument that the general elections would not be fair due to the presence of an elected assembly in Punjab, the PTI argued that this was “clearly a political debate” outside the ECP’s jurisdiction and not a matter to be raised before the Supreme Court.
April 4 Judgment
In an unanimous judgment on April 4, the bench had invalidated the ECP’s decision to postpone the polls in Punjab from April 10 to October 8, setting May 14 as the new date.
The court had also instructed the federal government to allocate Rs21 billion for elections in Punjab and Khyber Pakhtunkhwa, and provide a security plan to the ECP. Additionally, the court had directed the relevant authorities to keep it informed of the progress.
However, in subsequent reports submitted to the Supreme Court, the ECP had expressed that the ruling coalition was reluctant to release the funds.
The ECP argued that holding staggered polls in Punjab and KP separately, before other regions, was not feasible as it would incur additional expenses compared to holding the elections on a single day. It further stated that the already strained security apparatus would require weeks to mobilize.
On May 3, with less than two weeks until the May 14 election date, the ECP filed a plea seeking a review of the court’s April 4 order.
The review petition, submitted by Advocate Sajeel Shehryar Swati, came a day after the government and PTI reached a consensus on holding elections nationwide on the same day. However, they failed to agree on a specific date.
The impasse over holding elections in Punjab and KP arose after the PTI dissolved its governments in both provinces in January.
According to the Constitution, when an assembly is dissolved before completing its term, general elections for the house must be held within 90 days from the date of dissolution.
The crisis began when, despite almost 40 days passing since the assemblies were dissolved, the ECP and the governors in both provinces did not announce a date for polls. During this time, the Lahore High Court (LHC) ordered the Punjab elections to be held within the constitutionally stipulated timeframe. However, both the ECP and the governor filed an intra-court appeal, seeking clarity on the entity responsible for finalizing the polling date.
The Peshawar High Court was also hearing a petition requesting elections to be held in KP within the stipulated timeframe.
On February 22, the Supreme Court took suo motu notice of the delay in announcing elections in the two provinces, leading to a series of events and conflicts within the country’s top court. The chain of events culminated in the three-member bench’s April 4 verdict, mandating elections in Punjab on May 14 and ordering the federal government to allocate Rs21 billion for the polls.
The Supreme Court did not decide on the polls in KP, directing the petitioners to approach the Peshawar High Court instead.
However, despite the Supreme Court’s order regarding Punjab polls, the government failed to release the funds and maintained that elections for the National Assembly and all provincial assemblies should be held on the same day.
On April 10, the initial deadline set by the Supreme Court for fund release, Finance Minister Ishaq Dar presented a money bill in the National Assembly, 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.
The government-dominated standing committees of both houses of parliament also rejected the bill in separate meetings.
The matter was taken up by the Supreme Court again, which directed the State Bank of Pakistan (SBP) to provide funds to the ECP for Punjab and KP polls by April 17.
The court ordered the SBP to release funds worth Rs21 billion from Account No I, a component of the Federal Consolidated Fund (FCF), and communicate this decision to the finance ministry by April 17.
Following the court’s orders, the central bank allocated the funds and sought approval from the finance ministry to release the amount to the ECP. However, the government’s approval was required to release the funds from the FCF, and the government argued that it needed approval from the National Assembly.
Subsequently, on April 17, the coalition government once again failed to secure approval from the National Assembly for the provision of Rs21 billion as a supplementary grant to the ECP for conducting polls in the two provinces, defying the Supreme Court’s third directive for fund release.
A day later, while hearing a defense ministry plea for same-day polls, the Supreme Court warned the government of “serious consequences” if it failed to release the necessary funds. The court emphasized that the prime minister’s office must enjoy the confidence of the majority in the National Assembly at all times.
The court stated that the government must be able to secure the passage of all financial measures it submits to the National Assembly, particularly those of constitutional importance. The court viewed the rejection of the demand to release poll funds as having “serious constitutional implications.”
On April 26, National Assembly Speaker Raja Pervaiz Ashraf wrote a letter to the Chief Justice, conveying the sentiments of the House regarding the court’s orders on elections in Punjab and KP. He urged the higher judiciary to exercise restraint and respect the legislative domain of parliament.
The Supreme Court subsequently granted temporary respite to the political parties and allowed time for dialogue on elections. The PTI and the government engaged in talks to reach a consensus on a date for elections nationwide. Although positive progress was claimed, no decision was made on practical proposals put forward by the PTI.