Elections can be postponed only by declaring emergency: CJP

Sohail Khan
Wednesday, Mar 29, 2023

ISLAMABAD: Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial on Tuesday observed that the Election Commission of Pakistan (ECP) had no authority and legal backing for postponing the elections in Punjab until October 8 and passed its order of March 22 in haste.

A five-member larger bench of the apex court, headed by Justice 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 of March 22.

During the hearing that lasted for over three hours, CJP Bandial remarked: “Elections can only be postponed by declaring an emergency.” He also asked if the ECP’s decision recommended imposing an emergency. The chief justice observed that it was clear that the ECP had no authority to change the date given by the president for holding the election in Punjab. “In fact, the ECP passed its order on March 22 in haste, postponing the election until October 8,” the CJP remarked.

He said that the court would not prolong the instant matter, adding that they had raised a very simple question as to whether the ECP was competent to extend the date for the election. “And if the ECP has the authority then there will be no question and the matter will come to an end,” the CJP said. The chief justice further observed that maintaining the rule of law was necessary for the smooth functioning of democracy, adding that democracy cannot flourish without adhering to rule of law.

Farooq H Naek, representing the Pakistan Peoples Party, however, stressed that democracy also rests under trust, adding that the petitions were going to decide the fate of political parties. “We are representatives of the people and stakeholders in the instant case,” Naek contended, adding that right now there was anarchy and fascism.

The chief justice asked Naek that he had himself told the court that 90 days were required for holding the elections once the assemblies were dissolved. “Rule of law and democracy are two sides of the same coin,” the CJP said, adding that the court cannot decide the legal controversy in a vacuum but would interpret the Constitution on facts. The CJP recalled that in his March 1 order, he had declared that the law empowers the president to announce the date for the election.

Justice Jamal Khan Mandokhail asked Naek why the parliamentarians were not raising the issue on the floor of parliament. We are contemplating this, the PPP counsel replied.

Barrister Ali Zafar, counsel for the PTI, while arguing before the court, questioned whether the order passed by ECP on March 22 was a violation of the Constitution. He submitted that the apex court had issued various judgments pertaining to articles 224 and 105 of the Constitution, adding that the most popular judgment of the apex court was that of Khwaja Sharif’s case wherein it was held that an election should be held within 90 days after the dissolution of assemblies, so it was a fit case on the issue.

Similarly, he submitted that another case titled Mian Nawaz Sharif versus the Federation which was penned down by 12 judges of the apex court had specifically talked about the right to participate in government as well as in legislative matters and that elections were related to basic fundamental rights. He submitted that Justice Saleem Akhtar, one of the judges of the said bench, in his judgment had held that if the right to participate in the election matters was denied, it will be the worst form of violation of fundamental rights.

Justice Ijazul Ahsen observed that the ECP “has the right to adjust the election schedule within 90 days”, but added that it could not exceed the 90-day limit. Justice Jamal Khan Mandokhail observed that 90 days have passed, adding that elections must take place under all circumstances. “But who will exceed the election date beyond the 90-day limit and this is the main question,” Justice Mandokhail added. The PTI counsel submitted that democracy only exists through elections and the ECP was constitutionally mandated under Section 58 to ensure timely elections.

Similarly, he submitted that Article 218(3) of the Constitution says that it will be the duty of the ECP to organise and conduct elections honestly, and fairly in accordance with the law and guard against corrupt practices. “Suppose we ask the ECP to ensure election and they do not comply with our order, then what we could do?” Justice Mandokhail asked the PTI counsel.

The counsel replied that every institution is bound to render its constitutional obligation while staying within its constitutional limits. He submitted that Article 220 bounds all the executive authorities to extend cooperation to the ECP in the discharge of its duties for holding elections in the country.

Justice Ijazul Ahsen observed that the ECP should have consulted the president before postponing the schedule for holding elections in Punjab. Barrister Ali Zafar submitted that the ECP took decisions after taking feedback from different institutions. He alleged that the Commission remained confined only to the extent of holding meetings but never asked either for money or security personnel. Justice Munib Akhtar observed that if there was no possibility of holding elections, then the commission should have consulted the apex court first but could not take the decision on its side as well.

“If the Commission can extend the date for election for six months, then it could also extend the date even for two years,” Justice Munib Akhtar remarked. “But the Constitution is silent on the point as to who could extend the date of elections,” Justice Mandokhail said. “But on whatever basis the elections were postponed, it can never happen,” Ali Zafar submitted.

Justice Muneeb Akhtar observed that the federal government said that it had imposed taxes of Rs500 billion till February 2023. But it is strange that Rs20 billion is not given for holding elections in the two provinces. The PTI’s lawyer contended that the issuance of funds was a technical issue. CJP Bandial remarked that the country was going through an economic crisis and it was a reality that could not be ignored. “Sacrifice is necessary to deal with the crisis. The cost of the election can be accumulated by cutting five percent of salaries,” said the CJP. He added that in Turkey apart from the earthquake-hit areas, elections were being held everywhere.

Meanwhile, Akram Sheikh, advocate, told the court that he would be arguing on behalf of the Pakistan Muslim League-Nawaz (PMLN). Later, the court adjourned the hearing for today (Wednesday).