How long the democracy will be sacrificed by postponing the polls: CJP Umar Ata Bandial

ISLAMABAD, May 25 (SABAH): The Supreme Court of Pakistan on Thursday resumed hearing on a petition filed by the Election Commission of Pakistan (ECP) seeking review of 4^th April 2023, ruling regarding holding of elections in Punjab on May 14.

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

At the outset of the hearing on Thursday, the chief justice asked: “What is your main point in the case?” He said the court had already wasted time in discussion on an Indian court’s ruling.

Beginning his arguments, the ECP lawyer Sajeel Sheryar Swati said the Supreme Court rules could not reduce the constitutional authority.

At which, Justice Ahsan inquired how the rules undermined the constitutional authority. At which, Sajeel Swati said the top court in various cases had declared that the scope of the review could not be limited.

Justice Akhtar remarked that the rules of the Supreme Court would become ineffective if the ECP lawyer’s logic was accepted. “You have broadened the scope more than the central case,” he added. Sometimes the power of parliament to legislate was also limited, he said.

Sajeel Swati said a larger bench in a contempt case had declared that the authority of the apex court could not be reduced. He added that the review petition was continuation of the main case regarding elections in Punjab.

At which, the CJP intervened and asked the ECP counsel to be precise in their arguments so the court could get what he wanted to say.

Sajeel Swati said existence of the caretaker set-up was a must for holding elections, adding that the Constitution provided procedure for appointment of interim governments. He said the family members of interim rulers could not take part in elections. “The ban has been imposed to ensure transparency in the polls,” the ECP lawyer said.

“If the provincial assembly is dissolved in six months, the caretaker set-up will continue for four and a half years. Whether there will be wait for four years for the dissolution of the National Assembly?” Justice Ahsan questioned.

Sajeel Swati replied in affirmative, saying the interim government would run the affairs for four and half years in the province. He said an article of the Constitution could not be violated while implementing the other. He argued that delay in 90 days period for election could get legal support from Article 245, saying compensation for delay in election was possible under the constitution.

The chief justice remarked that compensation could also be made by electing new government for remaining period. “How it is possible in the Constitution that an elected government serves for six months and interim set-up serves for four and a half years,” he observed.

The CJP remarked that negative powers got active in the country when elections were delayed. “How long the democracy will be sacrificed by postponing the polls,” he said.

Justice Ijazul Ahsan remarked the 90-day period for holding election had been given in the Constitution, adding that the interim set-up was appointed to hold polls. “Extension in interim government’s term is violation of the Constitution,” he remarked.

He said the ECP could not present financial and security constraints as excuses, saying: “Is election commission was not empowered?”

To which, Sajeel Swati said a blind eye could not be turned towards the Constitutional authority. In response, Justice Ahsan how an interim government could continue for four and half month, adding the Constitution was to implement in letter and spirit.

Chief Justice Umar Ata Bandial said that the court will have to see how long constitutional provisions could be held in abeyance as the apex court is the ‘guardian of the Constitution’. He also commented on the events of May 9 and said it was very ‘significant’ as it has affected national polity.

The chief justice questioned how was it constitutionally possible for an elected government to remain in power for six months and a caretaker government holds power for four years.

The ECP’s counsel, Sajeel Swati, was told by the CJP said that it was the third day of arguments and added that arguments should be brief and concise as a considerable amount of the apex court’s time has been used. He then asked the ECP lawyer regarding his “real point”.

Advocate Swati argued that SC rules could not curtail constitutional powers, to which Justice Ahsan questioned how the rules reduced the judicial constitutional powers. Swati stated that a full court, in several cases, had declared that the scope of revision was not “limited”.

“If we accept your logic, the Supreme Court rules practically become null and void,” Justice Akhtar maintained.

Swati argued that at times, the Parliament’s power to legislate is also limited, adding that in the case of contempt of court, a larger bench declared that the authority of the SC could not be reduced.

He further stated that the revision petition was actually a continuation of the main case.

“If you continue to shoot arrows in the air, we will continue to look at the sky. At least aim and fire. What do you want to say?” the chief justice asked.

Justice Akhtar remarked that the lawyer had increased the scope of the revision petition to be larger than the main case itself.

The ECP counsel stated that it was necessary to have a caretaker government in place for the elections, and the procedure for appointing a caretaker government was provided in the Constitution.

Justice Ahsan questioned if the caretaker government would remain in power for four and a half years if the provincial assembly was dissolved in six months and also asked if the caretaker government would wait four and a half years for the dissolution of the National Assembly.

Swati contended that the caretaker government would work in the respective province for four and a half years, adding that an article of the Constitution could not be violated by other actions. He maintained that Article 254 gives legal support to a delay of 90 days.

The chief justice said that the remedy may be a newly elected government coming in for four and a half years. He questioned how was it possible in the Constitution that the elected government should remain for six months and the caretaker government for four and a half years.

The chief justice stated that negative forces would set into motion with more delay of elections, adding that the SC was the guardian of the Constitution and had to defend it at “all costs”.

The ECP lawyer, however, maintained that the Commission’s date for holding polls on October 8 was given “as per facts”. To this, Justice Akhtar questioned what would happen if the ECP on September 8 said that elections were not possible in October.

“Conducting elections is the duty of the Election Commission, not discretion,” Justice Akhtar said.

CJP Bandial recalled that the lawyer himself had said that the spirit of the Constitution was democracy and asked how long democracy would be sacrificed for. He further said that people should get an opportunity to express their opinions.

Justice Bandial continued that the decision of the ECP to delay elections only mentioned a lack of resources. He questioned when the ECP would say “enough is enough” and hold elections in any case. Giving the example of Balochistan, the CJP said that the province had a 60% turnout for elections despite security concerns. He remarked that the ECP was now “talking politically”.

Justice Ahsan stated that caretaker governments came to power so that no party received official support. He questioned if the caretaker government could “stay as long as it wants”.

To this, Swati replied that the tenure of the caretaker government would be determined according to the “circumstances”.

Justice Akhtar reiterated that the ECP told the top court that it only needed resources, but was now claiming that elections were not possible according to the principles of the Constitution. He asked why the ECP did not earlier say that elections were not possible even with resources present.

The ECP’s lawyer argued that the point was raised in the Commission’s written petition.

The CJP maintained that the ECP did not inform the president of the provincial governor about the facts but for two days argued in favour of the case being reheard. He inquired which provisions of the Constitution would be invalidated by holding elections one day.

The chief justice further questioned how the leader of the House could be prevented from dissolving the Assembly.

“If the system is strong, perhaps all elections are possible separately. Right now, you are travelling in the dark with no destination in sight,” he added.

The ECP lawyer argued that the October date was given after looking at the political environment and that the Commission had expressed concern over the protests of May 9.

Justice Akhtar argued that it was not possible for the counsel to adopt a position that suited the ECP and prevented him from speaking about the events of May 9.

He then asked if all five assemblies could be separate, to which the ECP lawyer said that if there are caretaker governments then separate elections could be possible. He added that separate elections were not possible due to the current situation.

The counsel questioned how there could be transparent elections without a neutral administration.

Later, the chief justice asked the ECP lawyer to submit arguments on the actual case and adjourned the hearing till 29^th May (Monday).

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.