ISLAMABAD: The Supreme Court on Monday raised questions over the legality of March 22 order of Election Commission of Pakistan (ECP) postponing the election in Punjab until October 8 observing that the order of the electoral watchdog was a blockade in the way of its judgement for the enforcement of fundamental rights of the people of the two provinces.
The court also sought assurances from the government and the Pakistan Tehreek-e-Insaf (PTI) to restore calm for holding transparent and peaceful elections. A five-member larger bench of the apex court headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprising Justice Ijazul Ahsen, Justice Munib Akhtar, Justice Aminuddin Khan and Justice Jamal Khan Mandokhail heard the petition of Pakistan Tehreek-e-Insaf (PTI) challenging the ECP order.
The court issued notices to the federal government, ECP and Khyber Pakhtunkhwa (KP) governor seeking their replies by today (Tuesday) over the legal points raised by the petitioner.
The PTI and the Speakers of the Punjab and KP assemblies the other day had filed a joint petition under Article 184(3) of the Constitution, praying the apex court to set aside the order passed by the ECP on March 22, postponing the election in Punjab until October 8.
During the course of hearing, Chief Justice Bandial observed that the crucial questions is as to whether the ECP was competent to make changes in the date given by the President of Pakistan for holding election in the province of Punjab.
The CJP observed that although election dates were extended in the past including after the Benzir Bhutto martyrdom in 2007. “But the real question arises as to whether the date for holding election in Punjab could remain pending for such a long time,” the CJP questioned, adding that matter of fundamental rights of the people of the two provinces were involved in the instant case.
Barrister Ali Zafar, counsel for the PTI, submitted before the court that by violating the order of the apex court’s order of March 1, 2023, the ECP made a hat-trick. He submitted that the electoral watchdog was not empowered to give the date for holding the election as under the Constitution it was only required to conduct elections.
After the apex court order of March, 1, the president had announced April 30 the date for holding election in Punjab after consultation with the ECP, the counsel submitted. He contended that the ECP order of March 22, postponing the election until October 8 was sheer violation of apex court order.
He further submitted that the apex court order had ordered for holding elections in Punjab and Khyber Pukhtunkhwa within 90 days since the dissolution of both the provincial assemblies. He further submitted that the Ministry of Interior had refused to provide security personals for holding elections, adding that the Constitution does not allow the executive to refuse extending cooperation to the ECP regarding holding of elections.
Justice Ijazul Ahsen observed that the ECP had informed the apex court that it was only bound constitutionally to hold elections but not mandated to give dates for holding elections. “Now by postponing the election until October 8, whether the electoral watchdog contradicted his earlier statement,” Justice Ahsen remarked.
Justice Jamal Khan Mandokhel asked the PTI counsel as to what he wants from the apex court to which the counsel replied that the court should implement its order of March 1 in letter and spirit.
Justice Mandokhel further asked the counsel as to why the petitioner did not approach a high court for the implementation of order adding that it was the job of the high court to implement the order.
Ali Zafar submitted that the matter not only relates to implementation of the apex court order but also relates to two provinces, adding that one high court cannot hear the matter of two provinces.
The Supreme Court while exercising its jurisdiction had already given its judgment and the verdict is still in field,” Ali Zafar submitted. Justice Munib Akhtar said that “all five judges had signed the short order of March 1, which is order of the court, adding that there could be no two judgments of the apex court.
The judge further observed that the ECP order of March 22 was a blockade in the way of apex court judgment. The Supreme Court was better to decide as to whether its order was violated or not,” Justice Munib remarked.
Barrister Ali Zafar further submitted that the matter specifically relates to the fundamental rights of the people of Punjab and KP. Justice Mandokhel asked the counsel as to which court’s order he wants to implement.
Ali Zafra submitted that he wants that the order passed by the Supreme Court on March 1 be implemented in letter and spirit wherein it was clearly directed for holding the elections in 90 days.
The chief justice observed that the ECP, while announcing the order on March 22, had sought the support of Article 254 of the Constitution. The CJP asked the PTI counsel as to whether in such a situation the ECP could take the support of Article 254 of the Constitution when the said Article does not allow violation of the Constitution.
Ali Zafar however, contended that the ECP did not have any power under the law and the Constitution to pass such an order. “It appears that the ECP has in the said order taken refuge behind Article 254 of the Constitution”, he submitted, adding that the interpretation of that provision of the Constitution by this court, inter alia, in Presidential Reference No.1 of 1988 (PLD 1989 SC 75), Rashid Ahmed vs. Government of Punjab (PLD 2010 SC 573) and Pakistan Peoples Party Parliamentarians vs. Federal of Pakistan (PLD 2022 SC 574) envisages post facto protection of the validity of the acts performed beyond the time fixed therefor by the Constitution.
He contended that the Article 254 does not confer the prior authorisation of delay in the execution of obligations required to be performed within a specified time prescribed by the Constitution.
Ali Zafar further urged that that the grounds given for extending the date of poll to 08.10.2023 have no backing of law or the Constitution, adding that such grounds may be available in several situations.
The court observed that in past the general elections had been held notwithstanding that such factors were present at the time of the elections, for instance in 1988 and 2008.
Chief Justice Bandial observed that timely general elections held “honestly, justly, fairly and in accordance with law” are crucial for democratic system of government mandated by our Constitution. Any flaw, deficiency or failing in the holding of general elections is, prima facie, a matter of public importance that affects the fundamental rights of the voting public.
The court issued notices to the respondents and asked the ECP to come prepared to assist on the legal questions and the factual points raised in the petition.
The CJP observed that the basic question arises as to whether the ECP was authorised to change the date given by the president.
“For the first time it was witnessed that the ECP changed the date given by the president and we have to see as to whether the electoral watchdog was empowered to change the date given by the president”, he remarked.
The PTI counsel submitted that the president on the order of the apex court announced April 30 for holding election in Punjab, however, the ECP through its order March 22 gave new date of October 8.
The counsel feared that if the court accepted the justification of shortage of funds for not holding the elections then the government would not hold the elections in the two provinces.
Meanwhile, the CJP asked all political parties to give assurance to holding free and fair elections. The chief justice further said that “political parties should restore calm and peace”. The chief justice observed that both the Constitution and laws are made for the protection of fundamental rights of the people.
“We have to interpret the Constitution on the basis of facts but not in vacuum,” the CJP remarked, adding that the court needs assurance that elections would be held in transparent manner as per requirement of the Constitution. Later, the court adjourned the hearing for today (Tuesday) at 11:30am.
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