'We are sitting here with a clean heart,' CJP tells AGP Awan

• Statements made in certain contexts were reported to give wrong impressions: CJP
• CJP slams govt for raising objections on bench instead of arguing on case.
• Why did ECP not inform president of situation it is telling court now, asks CJP.

Chief Justice Umar Ata Bandial remarked on Wednesday that the apex court had a "clean heart" and would not use the past against the government.

The CJP's remarks came as the Supreme Court resumed the hearing of the review petition filed by the Election Commission of Pakistan (ECP) challenging its order directing polls in Punjab on May 14.

The plea was heard by the same bench that issued the initial order on April 4, comprising CJP Bandial, Justice Munib Akhtar and Justice Ijazul Ahsan.

Today's hearing

At the outset of the hearing, Attorney General for Pakistan (AGP) Mansoor Usman Awan came to the rostrum and began to present his arguments. He said that some of the court’s remarks day earlier left a “wrong impression”.

“It was asked in the court yesterday why the Election Commission did not raise the points earlier,” he said, adding that the bench had also remarked that the federal government had previously been arguing that the decision to hold elections was a “minority verdict”.

In response to these issues, the attorney general said: “The point that the election of the National Assembly will be affected if there are elections in a province was raised earlier.”

He added that the point that the federal government considered the 4/3 verdict to be a minority verdict was also raised beforehand.

Hearing these remarks, CJP Bandial said: “We were happy yesterday that legal points were presented before the court, yesterday. You do not need to panic.”

He assured the attorney general that the apex court would consider any reasonable point raised before taking a decision.

“Legal points were raised earlier in the court but not discussed,” he said, adding that there was a discussion on the jurisdiction of review in the court yesterday.

“The past will not be used against the government,” he said, stressing the court’s impartiality.

“You tell your colleagues not to speak so harshly at our door […] the largest House. We work for Allah, that's why we are sitting quietly,” the CJP remarked.

He then told the AGP to tell “whoever” had asked him to give a clarification, that the court is sitting with a “clean heart”.

“The statements given in other contexts were reported in a way that they gave the wrong impression,” he said, regretting that the court’s remarks were reported incorrectly.

CJP Bandial remarked that it was reported that the court had given Imran Khan a Mercedes.

“Mr, I don’t even use a Mercedes,” he said, adding that the PRO also told that the police arranged a bulletproof Mercedes for Khan but the matter was twisted into something else.

Scope of review petition

ECP’s counsel Swati, during the proceedings, then presented more arguments in favour of the body’s stance that the scope of the review petition is expanded.

He contended that the court always interprets the Constitution as a living document.

“The ultimate institution of justice is the Supreme Court; therefore, the jurisdiction cannot be limited,” he argued.

At this, CJP Bandial asked: “Have 150 years of judicial precedents become ineffective?”

“According to 150 years of judicial precedents, there is a difference between the scope of revision and appeal,” he said, adding that the ECP counsel has not answered this question since yesterday.

Meanwhile, Justice Akhtar remarked: “If we accept your argument regarding the scope as correct, then the Supreme Court’s rules will be annulled.” He added that the top court’s rules had not yet been amended.

He further pointed out that should the scope be expanded, many older cases will also come for review.

“How can Order 26 of the Supreme Court Rules, which relates to review petitions, not be fully implemented?” he asked, adding that if “Order 26” is not fully implemented, the period for filing revision will also expire.

“Can anyone file a revision after 10 years and say that the rules are not fully applicable?” Justice Akhtar inquired.

You probably have no idea of the consequences after your argument is accepted, he remarked.

At this, the ECP lawyer said that the period for filing the revision should not expire.

“In 70 years, you are the first person to discover this point, so tell the results,” Justice Akhtar asked.

At this point, Justice Ahsan reiterated that the scope of the review is mentioned in the Supreme Court Rules.

The rules cannot impose restrictions on the filing of review petitions as it is mandated by the Constitution, Swati argued.

Going back to the previous point of the time limitation, Justice Ahsan remarked: “The Constitution does not even give a period for filing a review. Can a review petition be filed 20 years after the judgment?”

He further asked: “If the rule pertaining to the time period of the review can be applied, how is the rule regarding its scope not applicable?”

Swati responded: “The makers of the Supreme Court Rules did not limit the jurisdiction in constitutional cases.”

Stating that he was presenting a case before the country’s top three judges, the ECP lawyer said: “The law keeps changing with time.”

CJP Bandial then brought up the issue of the suo motu powers of the court and commented: “According to you, the use of [Article] 184/3 has increased a lot.”

It is also possible that mistakes have been made in Article 184/3 judgments he said, and asked: “In your view, it is not right to limit the scope of review?”

He added that the AGP’s opinion on this point would be taken.

Address issue of Punjab polls: CJP

The CJP then instructed Swati to address to the real matter at hand: the Punjab polls date.

“The issue of announcing the date of the elections had come to the court for the first time,” Swati said.

The CJP reminded him that the ECP itself had said that it would conduct the elections by providing security and funds.

“Now what is the legal status of all these points?” he asked adding that the 9-member bench had raised important questions in its order.

However, at the time, the interests of political parties were connected elsewhere.

Coming down hard on the government, the CJP said that at the time when the order was issued, the government had raised objections on the bench instead of raising arguments on legal points.

He said that on the order of the court, a 5-member bench was formed from the original 9 members.

“A 7-member bench was never formed, so how did the decision of 4/3 come about?” he asked.

If this were not a matter of public interest, this case would be decided in two minutes, CJP Bandial remarked.

Swati submitted that on the order of the court, the commission had written a letter to the president.

CJP asks ECP why president was not briefed properly

However, the CJP turned his guns to the electoral body and said: “The election commission did not inform the president of the situation which it is informing the court now.

“The president was only written to give the date.”

“Why did the election commission not recommend simultaneous elections throughout the country to the president?” he asked.

The CJP also said that the president was not told about Article 218/3, the 1970 elections, the security situation or the scarcity of funds.

He slammed the ECP counsel and said that he was asking for more powers in the review, without presenting the ground reality or hard facts.

“Even if the Constitution allows for it, keep your eyes and mind open before using it.”

He then told Swati to continue his arguments.

Citing the case of the hunting of the Houbara Bustard, Swati said that the court had reviewed its decision.

“Then, the review petitions against the court’s decision to reinstate 16,000 employees who had been sacked was struck down,” he said.

In this case, the court used its power to grant fundamental rights and complete justice, he argued, adding that the court had overturned its own decision in the judges’ case.

Following this, the hearing was adjourned till May 25 (Wednesday) at 12:00pm.

ECP's petition

The electoral watchdog filed a review petition in the apex court against its order passed on April 4, setting May 14 as the date for holding elections in the province of Punjab.

It had submitted that, under the Constitution, the power of the announcement of the date for the general elections is vested in bodies other than any judicial institution; therefore, the impugned order under review had "breached the salient principle of the trichotomy of powers and thus is not sustainable".

Elections — principally a domain of the election commission under Article 218(3) of the Constitution read with other provisions of the Constitution — is the sole responsibility of the Election Commission of Pakistan, the ECP had contended.

Moreover, the ECP had submitted that in the presence of an elected government in Punjab, the general elections to the National Assembly cannot be conducted fairly. 

“Fair elections cannot take place in the presence of an elected government in Punjab”, the review petition had stated adding that the voter/electorate is likely to vote in favour of the candidates of the political party which has the elected government in Punjab.