Apex Court dismisses Election Commission of Pakistan’s plea seeking review of Punjab elections verdict

ISLAMABAD, August 31 (SABAH): The Supreme Court of Pakistan on Thursday dismissed the Election Commission of Pakistan’s (ECP) plea seeking review of the apex court’s verdict on holding Punjab Assembly elections on May 14. Meanwhile Chief Justice of Pakistan Umar Ata Bandial has remarked that whenever constitutional violation will take place the court will come. “The court will intervene whenever there is a Constitutional violation,” Chief Justice remarked.

A three-member bench, headed by CJP Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Munib Akhtar, observed that the top election organising body did not have Constitutional right to extend the poll date.

During the hearing, the ECP’s counsel Sajeel Shehryar Swati maintained that they had received the detailed order regarding the Punjab polls two weeks ago therefore they wanted to submit some additional documents in the light of this verdict. He requested the court to give him a week time to prepare his arguments.

To which, Justice Munib Akhtar remarked that the matter before the bench was a review petition and a verdict on the election delay case had already been announced.

Justice Ahsan observed that the Constitution does not give the ECP the authority to extend the election date, while the SC has also ruled the same.

The ECP lawyer then argued that according to the new law, only the ECP has the power to announce elections, but this argument was also shot down by the bench as Justice Akhtar observed that “this question is not before us right now, we are only hearing the review petition”.

The judge then proceeded to ask the lawyer to argue if there were any errors or inconsistencies in the judgment itself that mandated a review.

CJP Bandial furthered that “not only do you have the right to announce polls, but it is your [ECP’s] constitutional duty.

Justice Akhtar remarked that it is clearly stated in the Constitution that elections are to be held within 90 days while Justice Ahsan stressed that the constitutional mandate of holding elections within 90 days of passing the law cannot be changed. “The ECP cannot delay the elections for more than 90 days,” he said.

The ECP lawyer argued that there was some room for exceptions to the 90-day limit and said that “there are some mistakes in the Supreme Court’s decision”.

Justice Ahsan however observed that “Article 281 (3) of the Constitution postulates that it is the ECP’s responsibility to organize and conduct elections” and that it must do so within the constitutionally mandated period of 90 days. “Then how did the ECP grant itself this flexibility to delay elections?” he inquired.

The ECP lawyer responded by arguing that “it is also the ECP’s responsibility to ensure free and fair elections”, to which Justice Ahsan asked, “if free and fair elections cannot be guaranteed for five years then would that mean elections would not be held the entire time?”.

The CJP told the lawyer to point out where the flaws in the SC orders lay.

Justice Ahsan stressed that the electoral watchdog cannot postpone the elections beyond 90 days, even if a new law has been introduced. “The ECP cannot say that there is a new law, so it does not matter if polls are not held for even 690 days” as the body was bound by the Constitution. Justice Ijazul Ahsan remarked that we do not override the mandate of the ECP to hold elections in 90 days. He said that if the ECP says it could not ensure free, fair and transparent election in next five years then whether elections will not be held. Justice Ijazul Ahsan while addressing ECP lawyer said that we are trying to under from last half an hour that what is his submission, adding that what is error in the interpretation of the constitution done by us in this case.

Sajeel Shehryar Swati said that it is responsibility of the ECP to hold elections honestly, justly and fairly.

Justice Munib Akhtar remarked that the Election Commission of Pakistan had said that if funds and security is provided they will hold the elections, adding that if ECP is not able to hold the elections in 90 days then we have given the solution, which is not liked by the ECP. Justice Munib Akhtar while addressing ECP lawyer said that he should point out the reviewable error, adding that now the National Assembly has also been dissolved and if ECP is unable to hold elections in 90 days then we do not know about it.

The ECP lawyer agreed that “the Constitutional mandate cannot be exceeded but also stressed that the provisions mandating polls within the 90-day limit must be read in conjunction with Article 254 which states that under certain circumstances, elections can be delayed.

“How can the ECP decide about the specific circumstances on its own?” questioned Justice Ahsan, upon which the lawyer said that the power of Article 218(3) can be used only by the commission and not by the court.

Justice Ahsan however reiterated his earlier question, “Who granted the ECP the constitutional mandate to delay elections beyond 90 days?”

The court once again told the lawyer to argue what flaws lay in the earlier SC order.

“The mistake is that it states that the ECP cannot delay elections beyond 90 days,” Sajeel Swati responded.

Justice Akhtar said that if the watchdog finds obstacles in the provision of free and fair elections, it can come to court but stressed that the ECP cannot decide by itself not to hold elections.

Chief justice while addressing the lawyer of the ECP remarked that he has repeated three times that ECP has powers and duties and now he should move forward.

At one point, CJP Bandial observed that, “The court will intervene whenever there will be a constitutional violation.” Chief justice remarked that the constitution has not given the authority to any institution to override any provision of the constitution. Chief justice while addressing the lawyer of the ECP said that the language of the Article 254 should also been seen.

Justice Munib Akhtar while addressing the ECP lawyer remarked that seek our declaration that we could not hold elections in 90 days. Justice Munib Akhtar remarked that constitution is not anyone’s turf war; it belongs to the people of Pakistan.

Later, the apex court dismissed the commission’s review petition on the issue of Punjab elections.

In its plea, the ECP said changing the election programme was the solitary domain of the commission under Section 58 of the Elections Act 2017.

It asked the court to take back its April 4 judgement “in the interest of justice”, emphasising that Article 254 should be used to stultify the constitutional imperative of holding the elections within 90 days, but the apex court should also look at the ground realities. The provision suggested that failure to comply with requirements as to time does not render an act invalid.

“All provisions of the Constitution are required to be read together in harmony to make the provisions effective, workable and meaningful,” the review petition argued and added the April 4 order by the SC was “per incuriam” (lack of jurisdiction) to the Constitution; therefore, it needs to be revisited.

The review petition explained that Punjab and KP have 173 and 55 National Assembly seats, respectively, out of a total of 326 seats, which makes the total seats for Punjab and KP about 72 per cent of the assembly’s total strength.

The general elections to the National Assembly are due in the near future, as the assembly is completing its term in August 2023, ECP said, adding that the commission requires government machinery which is non-partisan to conduct the general elections fairly and in accordance with the law,

It urged the court to consider ground realities in true perspective since if the elections are held while permanent governments are in place in Punjab and KP, the sanctity, objectivity and fairness of the elections to 72 per cent of the general seats of the National Assembly would inevitably be compromised.

The commission submitted its concerns in writing during the hearing that culminated in the April 4 order, the review petition recalled. It added the question of harmonising Article 218(3) and Article 224 as well as the provisions of the Elections Act was of first impression and has not been dealt with by the superior courts.

The petition stressed that the ECP has even been guarded under Article 222 from any parliamentary intervention and its power cannot be diluted, whittled away, or abridged through parliamentary intervention.

For a change of the date, the Constitution is silent and Section 58 of the Elections Act comes into play, the petition said, arguing the Supreme Court relied upon Section 57 of the Elections Act to designate the president as authority for fixing the date where the assemblies stood dissolved by efflux of time.

It is not conceivable why the Supreme Court took upon itself the task of appointing a poll date which certainly is not the constitutional function assigned to the judicial organ of the state, the review petition argued, adding the change of election programme was the solitary domain of ECP under Section 58 of the Elections Act.

The Constitution is silent regarding the change of date of elections and when the constitution itself was silent, recourse had to be made to the Elections Act, the petition said.

One of the key stages of the election programme is the date of the poll, the petition reminded. The legislature while enacting sections 57 and 58 of the Elections Act was cognisant of the fact that situations may arise due to which the dates for the elections may be required to be changed, the plea added.

And to give an example, the petition recalled, the general elections of 2008 was delayed by 40 days by ECP keeping in view the exigency and requirement of that time. That is why, the legislature while enacting Section 58, put the overriding phrase “notwithstanding anything contained in Section 57”, at the very start of Section 58(1), knowing it all well that Section 57 enumerates something which was contrary to what Section 58 would consider as permissible.

The petition emphasised that the courts interpret the law but they do not re-write it. As per a literal interpretation of the provision of Section 58, change of the election programme or giving a fresh programme, of which poll date is an essential component or stage, is the domain of ECP.

Under no provision of the constitution or the law, the review petition argued, Supreme Court could have taken the exercise upon itself to appoint the poll date through April 4 order, adding the constitution was an organic document, it blossoms and evolves with time. The appointing of a date or changing it is an executive exercise, and certainly not a judicial exercise, the petition emphasised.