The Supreme Court (SC) on Thursday dismissed the Election Commission of Pakistan’s (ECP) plea asking the top court to revisit its order of holding elections to the Punjab Assembly on May 14.
“The court will intervene whenever the Constitution is violated,” Chief Justice of Pakistan (CJP) Umar Ata Bandial remarked during the hearing.
In a unanimous judgment on April 4, the bench had quashed the electoral body’s decision to extend the date for polls in the province from April 10 to Oct 8 and fixed May 14 as the new date.
It had also directed the government to release Rs21 billion for the elections in Punjab and Khyber Pakhtunkhwa and provide a security plan to the ECP regarding the polls. Moreover, the court had instructed relevant authorities to keep it in the loop.
However, in reports submitted to the apex court in subsequent days, the ECP had said the then ruling coalition was reluctant in releasing the funds.
It had contended that staggering polls by holding them in Punjab and KP separately, before elsewhere, was not feasible since it would incur significantly more expenses compared to holding the exercise on one day. It had further said that an already depleted security apparatus would require weeks in advance for its mobilisation.
On May 3, with fewer than two weeks to the May 14 election date ordered by the court, the election commission had filed its plea seeking a review of the court’s April 4 order.
It should be noted that in June, the former government had successfully managed to pass bills amending the Elections Act 2017. Under the changes to the election laws, the chief election commission has been empowered to fix the date for polls without input of the president.
Earlier today, a three-member SC bench comprising CJP Bandial, Justice Ijazul Ahsan and Justice Muneeb Akhtar resumed hearing the case, which was in June clubbed with Supreme Court (Review of Judgments and Orders) Act 2023. The law was struck down by the apex court on August 11.
At the outset of the hearing, ECP lawyer Sajeel Swati sought one more week for preparation. However, the CJP asked the lawyer to inform the court of his stance, saying that the bench would review the case.
The lawyer responded that he required time to prepare additional grounds in the case. He said that the most important question was regarding the power to give a date for elections.
After amendments to Section 57 and 58 of the Elections Act 2017, the power now rests with the ECP, the lawyer argued.
“Vakil sahib, keep in mind this is a review (plea),” Justice Akhtar remarked. “Don’t raise points that were not raised in the original case,” he said.
“Tell us from the record about mistakes in the order for which a review is required,” the judge told the ECP lawyer.
Swati said that the Constitution did not give the ECP the “authority but rather the responsibility”. “The changing of the date by the president is an important legal point,” the lawyer said.
The CJP said that the ECP had to use constitutional powers to fulfil constitutional responsibilities. Justice Akhtar then said that Swati’s arguments were oscillating from one point to another.
At one point, CJP Bandial said that court would intervene whenever there was a constitutional violation.
“The Constitution is not anyone’s property. No one can violate or deviate from the Constitution,” Justice Akhtar said.
ECP’s plea
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.
