SC’s hearing of ECP’s petition against apex court’s right to announce poll date underway
Justice Munib Akhtar (left), CJP Umar Ata Bandial and Justice Ijazul Ahsan (right). — Supreme Court website
Delaying elections will allow “negative powers” to swing into action in the country, Chief Justice of Pakistan (CJP) Umar Ata Bandial warned on Thursday while hearing the Election Commission of Pakistan’s (ECP’s) review petition challenging the apex court's decision to conduct polls in Punjab on May 14.
Moreover, CJP Bandial accused the electoral watchdog of “talking about politics”.
The bench hearing the pleas also includes Justice Munib Akhtar and Justice Ijazul Ahsan; this is the same bench that issued the directive on April 4 to hold polls in Punjab on May 14.
Following the bench's order, the electoral watchdog informed the apex court that it could not conduct elections owing to security concerns and a paucity of funds.
It then filed a review petition seeking an overturn of the court's order. This time, the body based its argument on its assertations that deciding on the date of the elections was beyond the jurisdiction of the apex court.
The hearing of the review petition began with more arguments from the ECP lawyer which irritated CJP Bandial.
“Tell us what your main point is,” he asked.
Swati responded: “Supreme Court Rules cannot curtail constitutional powers.”
Noting his point, Justice Ahsan instructed him to proceed.
“The full court has ruled in several cases that the scope of the review is not limited,” Swati then contended. On this point Justice Akhtar reiterated that if Swati’s argument was accepted, “the Supreme Court Rules will become null and void.”
“At times, even Parliament's power to legislate is also limited,” the ECP counsel submitted.
Term of interim government
The bench then directed Swati’s attention to the role of the interim government.
The ECP lawyer said that family members of caretaker cabinet cannot participate in elections.
“In order to maintain transparency in elections, this ban was added to the Constitution.”
Justice Ahsan then inquired: “If a provincial assembly is dissolved in six months, will the caretaker government remain for 4 and a half years? Will we wait for the dissolution of the National Assembly for 4 and a half years?”
Swati confirmed, saying that the caretaker government would work in the respective province for 4 and a half years.
He argued that one article cannot be violated while implementing another, adding that Article 254 — which says that an act in not rendered invalid merely because of failure to comply with its time stipulation — lends support to a delay of 90 days.
“A 90-day delay in elections can be redressed,” he said.
“The redressal is that the elected government come instead of a caretaker government for 4 and a half years,” CJP Bandial cut in.
“How is it possible that the elected government remain for 6 months while a caretaker government [stays in power] for 4 and a half years?” he asked.
“A caretaker government is set up to conduct elections in 90 days,” Justice Ahsan said.
“Where is it written in the Constitution that the [term of] a caretaker government can be extended?”
He said that doing so would be against the spirit of the Constitution.
Swati submitted that the court’s observation was correct.
The argument then turned to the role of the ECP and its handling of the situation following the dissolution of the assembly.
“Conducting transparent elections is the responsibility of the Commission. The commission cannot say that there are no funds, so elections cannot be held,” Justice Ahsan added.
Justice Akhtar further added: “Don’t think that Khyber Pakhtunkhwa has been sidelined by us.”
Moreover, CJP Bandial accused the electoral watchdog of “talking about politics” — an allegation that Swati rejected saying: “The Election Commission is an independent body, it is not talking about politics.”
However, he added, the Commission cannot fail to ensure transparent elections.
Justice Akhtar remarked that the ECP had earlier cited funds and security to be the reason for its inability to conduct poll.
“Now you are trying to run away from [your responsibility] by talking about the Constitution.”
The CJP then asked how long the judiciary — being the guardian of the constitution — was expected to remain silent.
“How long can Article 224 be kept in cold storage?” he asked, referring to the Article that discusses the ECP’s role in case of dispute over setting up an interim government.
“The events of May 9 confirmed the fears of the Election Commission,” Swati said.
However, the CJP once more cut him off, saying that the court would talk about “principles not concerns”.
Justice Akhtar further added that “general elections” do not mean only National Assembly elections.
“Five general elections are held simultaneously in elections,” he said.
Coming down hard on the ECP counsel, the bench asked why the commission had cited funds and security as reason for inability to conduct elections.
“Why was it not said earlier that elections are not possible even if resources are available?” Justice Akhtar asked.
CJP Bandial then asked: “Which provisions of the Constitution will be invalidated by holding the election on the same day?”
He remarked that, perhaps, 10 years from now, the system would be strong and all the elections will be possible separately.
“At present, we are traveling in the darkness with no destination in sight,” he said.
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.