ISLAMABAD: Chief Justice Umar Ata Bandial said the Election Commission of Pakistan (ECP) has no power to extend the date of the elections of the Punjab Assembly.
A five-judge SC bench, headed by Justice Bandial, and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Aminuddin Khan, and Justice Jamal Khan Mandokhail, on Tuesday, heard the Pakistan Tehreek-e-Insaf (PTI)’s petition to set aside the ECP’s order dated 22-03-23 to delay the Punjab elections.
The chief justice said; “It seemed that the Election Commission order dated 22nd March was written in haste.” He said if the ECP was not getting assistance from the government and the concerned authorities then why it had not approached the apex court to get the declaration. He questioned how elections could be delayed for such a long period.
The ECP on 22nd March postponed Punjab and the Khyber-Pakhtunkhwa elections until October 8 (more than five months) citing the deteriorating security situation in the country and the unavailability of finances and security personnel.
The chief justice said for the first time, the Supreme Court is examining the possibility of postponement of the election. He questioned whether the constitution allows it, adding the financial constraint and the law and order situation may have some relevance to certain provisions of the constitution, and if the facts are put together and seen then whether the ECP had reached the threshold?
The court noted that after the martyrdom of Benazir Bhutto, the elections were delayed only for 40 days despite the fact the record of the elections offices in the provinces was burnt. It was a very big tragedy.
Usman Mansoor Awan, newly appointed Attorney General for Pakistan, argued the census is going on and hopefully would be completed within the deadline, i.e., 30th April. After the census the ECP would start delimitation of the constituencies, he added.
Justice Munib said the elections of the two provincial assemblies (Sindh and Balochistan) and the National Assembly could be held on the basis of the new census, adding let the elections of Punjab and KP be held. He remarked suppose the census go beyond August, and in the meantime, the National Assembly is dissolved then would the interim set up have mandate to notify the census result. The AGP replied that the census will be completed by April 30.
The chief justice noted that the census improves the fairness of the elections, adding there are political parties who complain they were underreported in the last census; therefore, they do not have fair representation in the assemblies.
The AGP said that the government in order to receive the next tranche of an already agreed loan from IMF introduced a money bill in parliament aimed at raising Rs170 billion in taxes by June 2023. Justice Munib remarked that it would be good if the government instead of Rs170 billion raise Rs200 billion and give Rs25 billion to the ECP for holding of elections, adding the Rs20 billion could be raised by cutting down expenses.
The chief justice offered that he and other judges could also contribute to this vital national cause. He said the federal government has to perform its constitutional duty if the provincial is unable to fund the election. He noted that Rs10 billion have been allocated for the Laptop Scheme.
PTI’s Fawad Chaudhry informed the bench that the government had given Rs70 billion to the MNAs for the development projects in their areas. The chief justice said despite the massive earthquake in Turkey, the elections were not postponed.
Justice Munib said the government should not take it (delay of elections) lightly, as under the constitution it is duty-bound to fund the elections.
Justice Ijaz remarked that when the Court was hearing the petition regarding the no-confidence vote against the former PM, at that time, the ECP had informed the Court that they are ready to hold election in four months’ time notice.
The chief justice said that the constitution under no circumstance envisages an extension in the polling date. He said in the order the ECP had explained no legal or constitutional grounds to support its action to delay the polls.
The AGP said the defence secretary informed the ECP that because of the internal and external deteriorating security situation and the terrorism, they were unable to provide army personnel for elections duties. Justice Munib said every soldier martyred is the son of the nation, and the families without tears say they have sacrificed their dear ones for the sake of the country.
He said under the constitution it is the duty of the government to provide security to its citizens. He said under Article 245 of the constitution, the armed forces under the direction of the federal government shall act in aid of civil power when called upon to do so.
At the onset of the proceedings, AGP Awan raised questions over the maintainability of the PTI’s petition. He argued that matters related to the elections should be referred to the Lahore High Court (LHC) after two apex court judges issued their detailed opinion, wherein, they held that the earlier suo motu in the matter was dismissed by 4 - 3.
He said the LHC had not given the president the authority to announce the election date. The AGP also requested the court to constitute a full bench for the hearing of the matter.
However, CJP Bandial stated that the present case was a completely different matter, wherein, the apex court is examining whether the ECP had the authority to postpone the election date. He observed that the “question before the court is a simple one: can the ECP postpone the election date or not”.
The AGP argued before the court that two SC judges had given their verdict on the matter earlier. However, CJP Bandial held that the opinion expressed by the two judges was not relevant in this matter.
The attorney general responded that if the verdict was 4 - 3, then the president had no authority to give an election date even. He urged the court to first settle the issue of Court order dated March 1, as the petitioner’s prayer is rooted in March 1 order.
CJP Bandial remarked that the AGP’s arguments were based on a “technical point”, and asked the AGP “Don’t try to bypass the serious issue.”
Justice Aminuddin Khan questioned whether the election schedule could be “reduced to less than 90 days”, while Justice Ijazul Ahsan 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. “90 days have been surpassed even now,” observed Justice Mandokhail, adding that polls “must take place under all circumstances but now the question is who will exceed the election date beyond the 90-day limit”. “The other question is, should an assembly be dissolved at the whims of one person alone,” remarked Justice Mandokhail.
PTI’s lawyer Ali Zafar responded that “prime ministers and chief ministers are elected representatives of the people.”
“If the premier’s own party wishes to initiate a vote of no confidence against them, then the assembly can be dissolved,” said Justice Mandokhail.
“If a motion is moved for a vote of no confidence, then the assembly cannot be dissolved,” replied Ali Zafar, to which Justice Mandokhail said, “should the parliament not take this issue up?” “The parliament can debate the powers of the prime minister and the chief minister,” said Zafar.
At the end of the hearing, Justice Jamal said even if the apex court strikes down the ECP’s order, and then questioned what will be the fate of the date of the elections announced by the President (30th April) after the judgment of two judges. The case was adjourned until 11:30 a.m. today (Wednesday).
Copyright Business Recorder, 2023