Chief Justice of Pakistan Umar Ata Bandial has observed that the Election Commission of Pakistan (ECP) and the federal government are now taking the review petition filed with regard to elections in the country’s biggest province "seriously".
“Now they [the government and the ECP] are taking the matter seriously,” the CJP said on Tuesday.
Justice Bandial was leading a three-judge bench that resumed hearing of the ECP’s review petition against the bench’s April 4 order. The three-judge bench also comprising Justice Ijazul Ahsan and Justice Munib Akhtar on April 4 ordered the ECP to hold elections in Punjab on May 14.
The parliament while passing a resolution against the bench later also rejected a bill seeking funds for holding in Punjab and Khyber Pakhtunkhwa (K-P). The ECP later also filed a petition, contending that the court did not have the authority to announce election dates.
The top judge remarked that previously the two had been "motivated by other considerations in the matter of elections" and had their attention focused on apparently frivolous matters like "the number of judges" and appeals "for a full court hearing".
During the proceedings, ECP's counsel Sajeel Sheharyar Swati presented his arguments. He urged the bench to enlarge the scope of review in the matter. He said the federal and Punjab governments had submitted their responses in the case.
When the CJP said the Pakistan Tehreek-e-Insaf (PTI) party had not submitted its response yet, the counsel said the electoral watchdog had not received the replies of any political party. He requested the court to grant him time to review all the responses.
The chief justice asked the ECP counsel to submit his arguments in the case. The counsel said the jurisdiction of the ECP's review petition was not limited to constitutional cases.
Justice Ijazul Ahsan said approaching courts for fundamental rights was regarded as a civilian case. Advocate Swati said the proceedings under Article 184(3) were not civil in nature.
Justice Ahsan noted that one section of Article 184(3) fell under public interest and the other pertained to fundamental rights. The counsel said that Article 184(3) did not give the right to appeal. “The court had to take into account the requirements of justice in the review,” he added.
Justice Akhtar asked whether he was arguing that a review under 184(3) should be heard as an appeal. The lawyer replied in the affirmative. Justice Ijaz said if the ECP lawyer's argument was accepted, a hearing would have to be immediately conducted in the matter of review.
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“The Constitution does not state that the scope of the right to appeal and review is the same,” he added. Justice Munib said accepting the ECP's request would increase complications.
The counsel said the Constitution does not limit the scope either. “The court could also use Article 187 of the Constitution for absolute justice in reviews,” he said.
The CJP said that Article 184(3) of the Constitution did not give the right to appeal. There should be clarity regarding the scope in the Constitution, he said.
The ECP lawyer requested the court to issue a detailed order, saying that it would make things easier. The court later adjourned till today [Wednesday].
A day earlier, the federal government and the Punjab caretaker government had submitted replies to the apex court, contending that the bench’s order encroached on the autonomy of the ECP.
"Jurisdictional overreach by virtue of [the] order dated 04-04-2023 by encroaching upon the exclusive domain of the petitioner body [ECP] therefore infringes upon the independence and autonomy of the [ECP],” said a concise statement submitted by the federal government through Attorney General for Pakistan (AGP) Mansoor Awan.
“[The order is] violating the principles enshrined in the Constitution and the [Election] Act 2017 that has carved out a specific and special role for the [ECP]," it added.
The statement stated that the concept of "political justice" as envisioned in the Objectives Resolution, has become an integral component of our Constitution, embodying the ideals and values that shape our democratic system.
“By virtue of announcing a poll date by encroaching upon an autonomous body mandated with the powers to safeguard the votes of the people and ensure free and fair elections, the concept of political justice stands eroded and polluted,” it added.
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