AS the Supreme Court is seized of the issue of delaying polls in Punjab to 8 October, the Election Commission of Pakistan on Wednesday notified the same date for elections of the KP Assembly. The KP Governor had earlier proposed 28 May as the date for the polls, but later citing security concerns, he asked the ECP to hold the polls on 08 October. Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial, while hearing a petition of the PTI, asked the Interior and Defence Ministries to give the shortest possible time until which the situation would improve to the level where polls could be held. However, the proceedings witnessed ambiguity regarding the earlier Apex Court’s judgement of 1st March as one of the judges on the five-member Bench, Justice Jamal Khan Mandokhail, made it clear that the case was dismissed by a majority 4-3 as the Chief Justice did not issue an “order of the court”.
Apart from the foregoing developments, there was also another important move that could have a far-reaching impact on the overall political and judicial landscape of the country. A three-member Bench of the Apex Court, headed by Justice Qazi Faez Isa, while hearing a suo motu case referred to it by the CJP, adjudicated that all cases under Article 184(3) of the Constitution be postponed until amendments were made to Supreme Court Rules 1980 regarding the Chief Justice of Pakistan’s (CJP) discretionary powers to form Benches. The Bench ruled that the Constitution does not grant unilateral and arbitrary powers to the country’s top judge to list cases for hearing, form special benches and select judges. And the Supreme Court Rules might have to be reviewed in the light of the amendments already adopted by the National Assembly, which envisage delegation of such powers from the CJP to the institution. All this shows there is deep and serious division within the Supreme Court on the issue of suo motu notices and discretionary powers of the CJP regarding formation of the benches which some politicians believe are being exercised selectively. The new bill seeking to limit the discretionary powers of the Chief Justice of Pakistan to take suo motu notice under Article 184(3) of the Constitution also contains a provision to give the right to appeal to the people who were aggrieved by the orders passed by the SC under Article 184(3) before the enactment of this law. This could pave the way for contesting disqualifications of former Prime Minister and PML(N) Quaid Mian Nawaz Sharif, former Prime Minister and senior leader of PPP Yousaf Raza Gilani and estranged PTI leader Jahangir Khan Tareen. However, it has to be seen how the CJP reacts to the new legislation once it becomes an act of parliament after approval by the upper house and assent of the President and how Parliament reacts to any move seen as infringement into its origin domain. As for the date of the elections in Punjab and KP, notwithstanding connotations of the 4-3 verdict and the verdict of Qazi Faez Isa-led bench, it is also clear to the five-member bench hearing petition of the PTI that polls are an impossibility on the previously announced dates and therefore, consensus will have to be adopted on the new date. Relevant ministries and institutions have already given their opinion, which formed the basis for delaying the polls by the ECP and the security situation has not changed as is evident from a pre-dawn terrorist attack on a police post in Lakki Marwat on Thursday in which four policemen including a DSP were martyred. The Chief Justice asked about the possibility of holding staggered polls to meet the shortage of security personnel but he was informed that this could enable terrorist outfits to focus on areas of elections more easily. The Finance Ministry too had expressed its inability to allocate required funds for separate elections for Punjab and KP assemblies and then again for general election due to ongoing financial crunch. In this backdrop, it is hoped that the court would give its verdict keeping in view the ground realities – views of the government agencies, relevant ministries and, above all, the Election Commission. Stakes are high and elections without ensuring elaborate security could lead to a chaotic exercise, badly affecting the credibility of the entire electoral process. Therefore, this aspect should not be taken lightly by the bench.