ISLAMABAD: The Supreme Court (SC) Thursday said the Election Commission of Pakistan (ECP) had to be assertive and has asked explanation from the federal government for not providing funds and security for the general elections in Punjab and Khyber-Pakhtunkhwa.
A three-judge bench, headed by Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Munib Akhtar, on Thursday, heard the review petition of the ECP.
The chief justice said the Commission has an overarching duty to hold free and fair elections. He asked the ECP counsel Sajeel Shehryar Swati, that the ECP must not have allowed the ipsidixit to influence the Election Commission regarding the holding of elections in that province.
He said the Commission itself is inert and inactive, while it should have been dynamic and assertive. You need capacity building. He observed that the Commission asked the government to provide 461,000 army personnel for elections, while its operational strength is 461,000. He asked the counsel that the Commission need to be careful in giving demand.
Swati argued that the discretion the ECP exercised to hold election on October 8 was based on the tangible data and intelligence agencies reports that there is polarisation, adding the circumstances were not such to hold election on May 14.
The chief justice questioned what is the guarantee that polarisation and the present circumstances would no longer on October 8. Swati replied that he can’t say anything about it. However, he stated that after May 9 incidents, the Commission had to sit back and assessed the situation.
The chief justice said May 9 is significant and has an effect on the polity, adding something needs to be done. He said the court will have to see how long constitutional provisions could be held in abeyance as the apex court is the “guardian of the Constitution”.
Justice Ijaz raised a hypothetical question: if the chief minister of one province dissolves the assembly six months after holding of general elections but the National Assembly and other provincial assemblies remain undissolved then would the Commission wait for 4½ years to hold election of that province. The counsel replied, no. He, however, it depends on the circumstances.
Justice Munib said the general elections do not mean the elections of the National Assemblies, it also includes the elections of provinces or a province. He asked Swati to give constitutional principle that elections across will be held same day.
Justice Ijaz said the ECP’s principle stand should have been that the government was providing the funds and the security but the elections could not be held as the circumstances were not conducive and it wanted that the election should be held across the country same day. He asked under what constitutional principle the elections be held same day.
The chief justice said under which provision of the constitution the court bypasses the mandatory provision of holding elections within 90 days. He asked the ECP’s counsel that you have spent two days arguing that the court allows its review petition. He said it cannot be termed a review petition, but something else.
Justice Munib inquired how you (the ECP) divest the Leader of the House of the power to dissolve the assembly and not to hold election within 90 days.
Does Article 224 control it and does the constitution contemplates to disable the elected government in the province whilst the National Assembly elections tenure has not yet ended? He asked the counsel to set up a constitutional principle on generality then it can say that on so and so date circumstances are not appropriate.
Swati argued that the ECP conducts the elections by using the machinery of the federal and provincial governments. He said the Commission, on 22nd March, after the briefing of intelligence agencies and police kept in mind that there is political polarisation, which culminated on May 9.
He said circumstances in Punjab are not such that the general elections in the provincial could be held. He told that as the natural tenure of the National Assembly and other assemblies expiring on August 12, therefore, the ECP had proposed that the elections should be held on 8th October.
He further contended that for holding of general elections in the provinces and the National Assemblies there should be a caretaker setup. He said if the elections in the Punjab are held now than at the time of elections of the National Assembly there will be an elected government, while Article 224 demands that there should be a caretaker government there for free and fair elections.
The chief justice said that the Court had found its solution last when in the Punjab the chief minister’s power was restricted and made the ECP powerful to conduct the election without interference and interruption by the provincial government. The case was adjourned until Monday (May 29).
Copyright Business Recorder, 2023