Election delay case eclipsed by two judges’ surprise order

CJ Bandial observes ECP has ‘gone little off track’

ISLAMABAD:

Chief Justice of Pakistan Umar Ata Bandial on Monday said that “it [the Election Commission of Pakistan] may have gone a little off track, but it can be brought back”, ordering it to “come prepared to assist [the court] on the legal questions and the factual points raised in the [PTI] petition”.

The top judge’s remarks came amid fissures within the ranks of SC justices, as two judges called for revisiting the power of the “one-man show” enjoyed by the chief justice, saying that the country’s top court could not “be dependent on the solitary decision of one man”.

Moreover, the chief justice sought to enlist the help of political parties with a view to restore calm in the country, saying free and fair elections could not be possible without their cooperation.

“All political parties should give an assurance that they will cooperate in holding free and fair elections,” the chief justice said.

The remarks came as a five-member top court bench took up a politically explosive petition filed by the Pakistan Tehreek-e-Insaf, seeking direction for the poll supervisor to stick to the already announced schedule for the Punjab election.

Headed by the chief justice, the bench comprised Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Aminuddin Khan and Justice Jamal Khan Mandokhail.

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At the outset of the proceedings, the court, while issuing notices to the Federation of Pakistan, the Election Commission of Pakistan (ECP) and the governments of Punjab and K-P, ordered the ECP to explain the legal and factual questions raised in the PTI petition on Tuesday (today).

“We cannot interpret the Constitution in a vacuum,” remarked the top judge, adding that the court only “needs an assurance that the elections will be held in a transparent manner”.

The apex court chief justice said that the electoral watchdog “is just an institution”. “The elections are important for democracy but they can only be held in a conducive environment.”

He questioned the ECP’s authority to annul the date of elections given by the president. “Instead of amending the schedule, can it wipe out the schedule?” the chief justice asked.

He said, “Article 254 of the Constitution cannot condone the wrongdoing which is referred by the ECP.”

The chief justice noted that “there is a viewpoint that elections should be held in the country only when there is peace and order”, noting that elections should be free, transparent and fearless.

“What are our politicians doing to bring stability to the country? Justice Bandial remarked. “This is a very disturbing situation.”

Justice Munib Akhtar said that the ECP’s decisions had become an “obstruction” in the way of the apex court’s orders.

Justice Mandokhail raised questions on the maintainability of the petition. “Why the petitioner did not approach the high court for the implementation of the order,” Justice Mandokhail inquired.

He also asked, “Where is the order of the court in suo motu case regarding the announcement of the date to hold elections.”

However, Justice Akhtar said, “All five judges had signed the short order.”

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Counsel for the PTI, Barrister Syed Ali Zafar, while presenting his arguments, said that the apex court in its March 1 orders had instructed the ECP to decide on a date for elections in Punjab and K-P.

“On March 8, the ECP issued the schedule for elections in Punjab, whereas the K-P governor did not announce a date for the polls,” the PTI lawyer said.

He contended that the electoral watchdog had thrice committed violations, explaining that the ECP had rejected the election schedule announced by the president.

Zafar said that the electoral body had now delayed the elections till Oct 8, arguing that “it did not have the authority to give a new date for the polls”.

“The Election Commission has violated the 90-day period [for announcing the date of elections]. As per the Constitution, the ECP did not have the right to change the date [for polls] or extend the 90-day deadline,” he said, stressing that the ECP “overlooked” the court’s orders.

Justice Mandokhail asked, “What do you want from the court?”

Barrister Zafar replied that the petitioner wanted the SC to ensure the implementation of the Constitution and its own orders.

“The execution of court orders is the responsibility of the high court,” Justice Mandokhail replied.

Meanwhile, the PTI lawyer said that if the reason for the delay in polls — as given by the ECP — was accepted, “elections will never take place”.

“The matter did not just concern the court’s orders. The matter of elections in the two provinces cannot be heard by one high court,” he reasoned, adding that the SC had earlier used its authority on the matter and still had jurisdiction over it.

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Justice Akhtar said that the ECP’s decision had become “an obstruction in the orders of the SC”.

“Only the Supreme Court can decide better whether the orders are violated or not,” the judge observed.

The petition

The petition, moved by PTI Secretary General Asad Umar, Punjab Assembly Speaker Mohammad Sibtain Khan, K-P Assembly Speaker Mushtaq Ahmad Ghani and former lawmakers of Punjab Abdul Rehman and Mian Mahmoodur Rashid, pleaded that the ECP’s decision was in violation of the Constitution and tantamount to amending and subverting it.

In the petition, the PTI sought directions for the federal government to ensure law and order, provisions of funds and security personnel as per the ECP’s need to hold the elections.

It also requested the court to direct the K-P governor to announce the date for elections of the provincial assembly. Last week, K-P Governor Ghulam Ali also proposed Oct 8 as the date for holding the elections in the province. Earlier, he had announced May 28 as the date for polls.

In the petition, the PTI questioned the ECP’s authority to “amend the Constitution”, asking how it could decide to delay elections of any assembly beyond the period of 90 days from the date of dissolution of the said assembly as mandated by the Constitution.

The petition argued that the ECP was bound to obey and implement the judgments of the Supreme Court and had no power or jurisdiction to overrule or review them.

The ECP could not act in defiance of the Supreme Court’s directions as it had done in this case which was illegal and liable to be set aside, the petition pleaded.

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By announcing Oct 8 as the date, the ECP had delayed the elections for more than 183 days beyond the 90-day limit as prescribed in the Constitution.

The petition said that if the excuse of unavailability of security personnel was accepted this time, it would set a precedent to delay any future elections.

The petition added that there was no assurance that these factors — financial constraints, security situation, and non-availability of security personnel — would improve by Oct 8.

The “so-called excuse” would mean the Constitution could be held in abeyance every time elections were due, the petitioners feared, adding that in the past, similar situations had persisted, but elections were held in spite of them.

These situations could not be used as excuses to “subvert” the Constitution and deny people their right to elect representatives.

“Not holding elections in case of threats by terrorists will amount to giving in to the threats, which is in fact the aim of all terrorist activities,” the petition explained.