All eyes on CJP after ECP volte-face

All eyes are set on Chief Justice of Pakistan (CJP) Umar Ata Bandial in the wake of the Election Commission of Pakistan’s (ECP) surprising volte-face on Wednesday to postpone the Punjab elections, originally scheduled for April 30, till October 8.

CJP Bandial – who has already made it clear that the Supreme Court would interfere in case the polls were delayed –  had earlier invoked suo motu jurisdiction to hold general elections of both provincial assemblies within 90 days.

Now, the electoral watchdog’s announcement has potentially thrown the ball back to the SC’s court, renewing debate whether the top court – which was divided over ideological lines – would compel the ECP and executive authorities to hold elections of two provincial assemblies immediately.

The twist comes at a time when a section of SC judges is being accused of ‘tilting the scales’ in PTI’s favour is purportedly revealed in an alleged video leak of Muhammad Khan Bhatti, former principal secretary to ex-chief minister Chaudhry Pervaiz Elahi, in which he accused some judicial figures of supporting the PTI.

On the other hand, another group of SC judges was not in favour of invoking suo motu jurisdiction in this matter.

Senior lawyers believe that in order to end controversies, CJP Bandial should constitute a full court to hear the matter regarding the delay of elections.

PTI’s lawyer Chaudhry Faisal Hussain also agreed with the assertion that a full court should take up the matter and decide whether the constitution or the “law of the jungle” would prevail in the country.

Echoing Hussain, another PTI lawyer protested that it was high time that the jurists of the apex court raised above their egos and decided the matter. He pointed out that now the caretaker government’s ability to perform would also be called into question, recalling that the five-member larger bench had held that the caretaker government had no authority to spend public money beyond 120 days of its tenure.

“Now it remains to be seen as to how the Punjab government works in light of the constitution as well as SC ruling,” he wondered.

Moreover, senior lawyers agree that SC should have adjudicated Justice Athar Minallah's questions examining the constitutionality regarding the dissolution of provincial assemblies.

It is pertinent to note that the court in its order had said that Justice Minallah's questions would be considered at any other stage.

According to a senior lawyer, the questions were still relevant.

The legal fraternity is of the view that it would have been better for the PTI if the assemblies had been restored, allowing it to control the largest province till the general election. However, one section of lawyers termed it a “constitutional conundrum”

They said that the SC should stay away and for a change compel the political parties to sort out this mess. Nonetheless, they agreed that now it will be impossible for the SC to be seen as an 'impartial arbiter'

The lawyers further opined that the top court’s contempt proceeding in this matter will risk further eroding public confidence as it had now turned into a political question.

"SC has put itself in a difficult position. The sou moto should not have been taken and LHC allowed to conclude its proceedings. But the five members were in a hurry and in the process, they damaged the institution,” said a lawyer.

They said that if the apex court stayed away, all political parties might sit for a political solution to the matter.

‘Blatant mockery of constitution’

Reacting to the development, ex-senator Mustafa Nawaz Khokhar said that delaying the elections by the ECP was a blatant mockery of the constitution and alleged that the body had surely decided this on the wishes of the government and the establishment which are terrified of the polls.

"With already a tarnished reputation sadly ECP now has no credibility left,” he said.

‘Constitutional overreach’

Lawyer Hafiz Ahsaan Ahmad Khokhar while commenting on the present situation said that in the presence of clear provisions of Article 112 read with 224 (2) of the Constitution as well as in view of SC judgement, such postponement and rescheduling could legally be considered to be constitutional overreach on the part of the commission, and totally against the spirit and beyond to their mandate given under the constitution.

He further said that the rescheduling of the election schedule in Punjab was beyond the mandate of the ECP both in view of the constitutional provisions and of the Election Act 2017.

If there was any need to change or reschedule the election under any circumstances, it could only be amended or changed or extended by the commission with the prior concurrence of the president, and not otherwise as clearly mentioned in the language of section 58 of the Election Act 2017.

The lawyer said that there was a strong chance that the ECP’s order would be struck down by the Supreme Court once challenged or brought to the notice of it with regard to the court’s continuation of earlier proceedings.

The legal expert also said that the country can only move on in all perspectives including in areas of political and economic stability if all state institutions would act in accordance with their legal mandate and perform their functions as per the spirit of the constitution.