CJP Umar Ata Bandial praises the federal & Punjab govts for showing ‘seriousness’ in the Punjab election case

ISLAMABAD, May 23 (SABAH): Chief Justice of Pakistan Justice Umar Ata Bandial on Tuesday praised the federal and Punjab governments for showing “seriousness” in the Punjab election case.

The CJP lauded the authorities during the hearing of the Election Commission of Pakistan’s (ECP) review petition challenging the apex court’s verdict to conduct polls in the province on May 14. “Before this, all parties seemed to be interested in point-scoring,” the CJP remarked, wondering why the ECP did not raise the points earlier.

Meanwhile Justice Munib Akhtar remarked 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.

A three-member bench — headed by Chief Justice of Pakistan Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Munib Akhtar — heard the plea.

The top court had on April 4 directed the ECP to hold elections in Punjab on May 14 and ordered the federal and Punjab governments to provide assistance to the commission.

At the outset of the hearing, ECP’s legal counsel Advocate Sajeel Shehryar Swati took to the rostrum. He shared that the responses of the federal and Punjab governments had been received; however, Pakistan Tehreek-e-Insaf (PTI) had not submitted a written reply. “No reply has been provided to me in advance,” he said, asking to court to give him some time to review these.

The bench directed Swati to first explain how new grounds could be accepted in the review petition. “The Supreme Court’s rules have been made by the Supreme Court itself in adherence to the Constitution and it cannot exercise powers outside the criminal and civil jurisdiction,” Advocate Swati responded.

He further said that Article 187 which pertains to the SC’s authority to review its judgment does not limit, but rather extends its powers to review a petition. During the hearing, the ECP advocate further argued as to why the court should allow “new” arguments to be presented.

Asking Swati to elaborate further, Justice Munib Akhtar remarked: “You are unable to differentiate between public interest and public rights.”

“Jurisdiction to review a petition is not limited in constitutional cases,” Swati said.

At this, Justice Ahsan pointed out that approaching the court for fundamental rights was, in fact, a civil case. However, the ECP lawyer objected to this observation, saying that proceedings under Article 184-3 are not of civil nature.

Amidst this to-and-fro, Chief Justice Bandial asked: “According to you, the jurisdiction of review is not limited but the procedure is?”

On the other hand, Justice Munib wondered why the Supreme Court should determine its jurisdiction for the review petition.

“You are saying that if there is an appeal that comes through the high court, the jurisdiction [of the apex court] is limited; however, in the case of a review petition it is not.”

He then wondered: “Why should the Supreme Court create ambiguity in its jurisdiction?”

Advocate Swati responded by saying that since there was no right of appeal in Article 184-3, the scope of the review could not be limited.

He maintained that this was the first case of its kind and that despite reading more than 24 decisions but none mentioned the limit of review.

At this, Justice Munib wondered: “What if the framers of the Constitution limited the scope of the review so as not to go beyond the actual case? Why don’t we call it a retrial of the same case instead of a review?”

In response to the bench’s observation that the ECP counsel was implying that a revision petition is equivalent to a main appeal, Advocate Swati cited the case of an Indian court.

However, the CJP said, that it sounded as though the ECP lawyer wanted the court to treat the petition as both a review and an actual case.

The CJP then complimented the government and the interim Punjab governments’ “serious” responses.

The CJP further said that going forward, the petitioners should expect similar questions. “Why were these points not raised before?”

Swati responded by saying that he would share the reasons for not raising these points earlier, and instead asked the bench to share the detailed reasons for its April 4 decision.

Justice Munib responded that the court would give detailed reasons.

Moreover, he too praised the diligence of the ECP counsel and said: “The question raised for review will open the gateway for your arguments.

“To me, the proposals regarding widening the scope of the review are quite interesting.”

At the outset of the hearing on Tuesday, ECP lawyer Sajeel Swati came to the rostrum and said that the federal and Punjab government had submitted their responses in the case, which was obtained by the electoral watchdog on Tuesday.

“I think the PTI has not submitted its response yet,” the CJP said, to which Swati stated that ECP had yet not received the responses of PTI or any other political party.

“Please give us a chance to review all the responses,” the ECP lawyer requested. However, Justice Bandial asked Swati to present his arguments in the case.

“If you want to raise any new point in the next hearing, you can do it,” the top judge remarked, asking about the new grounds that could be taken in the review petition.

Subsequently, Swati started presenting his arguments. He contended that the jurisdiction of ECP’s review petition was not limited to constitutional cases, saying that the top court’s jurisdiction could be extended but not reduced.

In cases pertaining to reviews, the SC’s jurisdiction is limited to civil and criminal cases, the lawyer said.

Here, Justice Ahsan pointed out that approaching courts for fundamental rights was regarded as a civilian case. “But proceedings under Article 184(3) are not civil in nature,” Swati argued.

The judge responded that one section of Article 184(3) falls under public interest and the other pertains to fundamental rights.

“If a case linked to elections comes [to the SC] from the high court, will it not be a civilian case?” Justice Munib asked, to which the ECP lawyer said that the constitutional authority of a high court was greater than that of the apex court.

“According to you, if there is an appeal from the High Court, the jurisdiction is limited,” Justice Akhtar pointed, responding to Swati. “But in the review petition, your position is that the scope is not limited. Is this not discrimination in the case of fundamental rights?”

He also asked why the SC would create ambiguity in its jurisdiction.

At that, the ECP lawyer said that Article 184(3) did not give the right to appeal, adding that due to this the scope of the review petition could not be limited.

“The court has to take into account the requirements of justice in the review,” Swati went on to say, adding that new points could only be raised in constitutional cases.

“Are you arguing that a review under 184(3) should be heard as an appeal?” Justice Akhtar asked, to which the lawyer replied in the affirmative. “In cases pertaining to Article 184(3), the jurisdiction of review is not limited,” Swati added.

Meanwhile, Justice Ahsan stated that if the ECP lawyer’s argument was accepted, a hearing would have to be immediately conducted in the matter of review. “The Constitution doesn’t say that the scope of the right to appeal and review is same.”

Justice Munib also observed that accepting the ECP’s request would increase complications.

For his part, Swati said that the Constitution did not limit the scope either. “For absolute justice in reviews, the court can also use Article 187 of the Constitution.”

At that, the CJP intervened. “Don’t turn a review into an appeal. Article 184(3) of the Constitution does not give the right to appeal. There should be clarity regarding the scope in the Constitution,” he said.

The ECP lawyer then requested the court to issue a detailed order, saying that it would make things easier.

On the other hand, Justice Bandial remarked that the government and the electoral body were serious about the proceedings, recalling that previously the government had raised objections to the bench.

“They either raised the question of a full court or the 3-4 judgment issue,” the CJP said and asked Swati why the same arguments put before the court today were not raised earlier. “Has any other institution forced the ECP to adopt this stance?”

The Supreme Court then adjourned the hearing of the case till 12:00 PM today (Wednesday).

During Tuesday’s hearing, PTI submitted its response to the ECP’s review petition, asking the apex court to reject it. In its response, PTI contended that the Election Commission had raised new points in the review petition, which “could not be done”. “The commission wants the Supreme Court to revive the doctrine of necessity, which cannot be,” it stated.

It further contended that Article 224 — which calls for holding elections of an assembly within 60 days of its dissolution — could not be ignored in light of Article 218.

It added that the Constitution didn’t make it mandatory to hold all the elections simultaneously nor could the Supreme Court could amend the Constitution as per the ECP’s wishes.

‘Such dangerous arguments have been used before to break the Constitution, and the court has always rejected them,” it concluded.

In its petition, the electoral body has further maintained while such power exists elsewhere under the Constitution, it does not lie in a court of law and there is inherent wisdom in this division of power.

The electoral watchdog had further 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, and, therefore, the impugned order under review, has 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, the conduct of elections is the sole responsibility of the Election Commission of Pakistan, the ECP had contended.

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, justly and in accordance with the reasons that the elected government in Punjab, for instance, will surely be able to influence the outcome of the general elections to the National Assembly, with all the resources at its disposal.

“Therefore, 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.

Meanwhile, the federal government and Punjab Government on Monday filed their replies, adopting the stance taken by the ECP in its review petition.