March 27, 2023
Justice Munib Akhtar of the Supreme Court said on Monday that the Election Commission of Pakistan’s (ECP) decisions had become an “obstruction” in the way of the apex court’s orders.
He passed these remarks as the top court took up PTI’s petition challenging the electoral body’s orders to put off Punjab Assembly elections till Oct 8.
The five-member larger bench — headed by Chief Justice of Pakistan Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Akhtar, Justice Aminuddin Khan and Justice Jamal Khan Mandokhail — heard the case.
In a surprise move on March 22, the ECP had put off the elections for more than five months citing the deteriorating security situation in the country and the unavailability of security personnel.
Subsequently, Barrister Syed Ali Zafar moved a petition on behalf of the PTI officials with a request to order the ECP to hold the elections on the date fixed earlier — April 30.
During the hearing today, the court issued notices to the Federation of Pakistan, ECP and the governments of Punjab and KP.
Only SC can decide if its order was violated: Justice Akhtar
At the outset of the proceedings, Barrister Zafar told the court that the apex court, in its March 1 orders, had instructed the ECP to decide on a date for elections in Punjab and KP.
In its March 1 verdict, the Supreme Court had ordered to hold the election to the Punjab Assembly within 90 days and that the date be announced by the president. It also directed the authorities to provide funds and security personnel to ECP for the elections.
Presenting his arguments in the SC today, the PTI lawyer said: “On March 8, the ECP issued the schedule for elections in Punjab, whereas the KP governor did not announce a date for the polls.”
He contended that the electoral watchdog had thrice committed violations, explaining that the ECP had rejected the election schedule announced by the president.
Zafar further said that the electoral body has now delayed the elections till October 8, arguing that “it does 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 does 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.
Here, Justice Mandokhail asked: “What do you want from court?”
To this, 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, then “elections will never take place”. “The matter just does not concern to the court’s orders.
“The matter of elections in 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.
At that, Justice Akhtar said that the ECP’s decision has become “an obstruction in the orders of the SC”.
“Only the Supreme Court can decide better whether the orders were violated or not,” the judge observed.
Contradiction in ECP’s stance: Justice Ahsan
At one point during the hearing, Barrister Zafar asked: “What is the guarantee that the security situation will improve by October?”
Here, CJP Bandial asked if the ECP could set aside the poll date given by the president, noting that there was no past order from the SC regarding the matter.
“We have several examples in our history where the date for elections has been extended,” he pointed out, recalling that elections were also delayed after the death of Benazir Bhutto and the decision was accepted on a national level.
“Elections were also delayed in 1988 when the system of government changed,” he said, adding that no one had challenged the matter of extending the date for polls so far.
“Elections in KP and Punjab are a matter of the fundamental rights of the people of the provinces,” the top judge observed. He also asked if there any provision in the Constitution to determine the term of caretaker government.
Justice Mandokhail further inquired if the date given by the president was within the stipulated 90-day deadline.
Here, Justice Ahsan said that the ECP had proposed three dates following the SC’s March 1 verdict of which the president had selected April 30 for polls in Punjab.
He also said that the ECP had given the schedule for polls after the date was finalised.
On the other hand, Barrister Zafar said that an interim government’s responsibility was holding elections within 90 days. “It is not possible that the elections are extended from 90 days to five months.”
At that, Justice Ahsan remarked that earlier the ECP’s stance was that it cannot set a polling date but had now gone ahead and given a new date for elections. “Is this not a contradiction in its position?” he asked.
While referring to the apex court’s March 1 orders, Justice Akhtar maintained that the judgement was signed by all the five judges. “Don’t be mistaken that the SC had issued two judgements.
“A dissenting note is very common,” he added.
CJP Bandial seeks assurances from PTI, government
Meanwhile, CJP Bandial stated that the ECP had passed its order, to delay polls, under Article 244 of the Constitution — which states that the “failure to comply with requirement as to time does not render an act invalid” — and asked if this could be done.
Barrister Zafar replied that Article 254 could only be used after the “work is done” and that it wasn’t possible to use the law before it.
“Article 254 cannot change the time given in the Constitution,” the top judge remarked. “The Constitution does not give permission to violate Article 254.”
CJP Bandial further maintained that the ECP had the right to change the election schedule but at the same time asked: “Can the elections be postponed for such a long time?”
He said that the implementation of court orders was one aspect of the matter and reiterated that a delay in the polls also concerned the violation of fundamental rights.
At one point during the hearing, CJP Bandial sought assurances from the PTI and the government wanted to hold elections. “The court will not tell what the assurance will be … you will decide this,” he said.
The top judge observed that the Constitution and law were formed for the protection of the people. “Constitution and law should be interpreted on the basis of reality, not in a vacuum.”
The court, he reiterated, only wanted assurance from the two sides.
“Elections should be held in a peaceful, transparent and fair way,” CJP Bandial stressed, stating that the PTI and government had to assure that they would remain peaceful during the polls.
“The parties itself should evaluate what is good for the people,” he said, adding that the Constitution was not just there for making or breaking the government. “The Constitution should be interpreted in the light of life and happiness of the people,” he said.
The CJP said the present political situation in the country was “very alarming” and noted that elections could only be held once the situation improved.
The election commission is just an institution and its needs facilitation and support for elections, the apex judge added.
Subsequently, the hearing was adjourned till Tuesday, 11:30am.
The petition, moved by PTI Secretary General Asad Umar, former Punjab Assembly speaker Mohammad Sibtain Khan, former Khyber Pakhtunkhwa Assembly Speaker Mushtaq Ahmad Ghani and ex-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, 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 Khyber Pakhtunkhwa governor to announce the date for elections to the provincial assembly. Last week, KP Governor Ghulam Ali also proposed Oct 8 as the date for holding 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” and asked how it could decide to delay elections to 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 cannot act in defiance of the Supreme Court’s directions as it has done in this case which was illegal and liable to be set aside, the petition pleaded. By announcing Oct 8 as the date, the ECP has 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 will 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 have persisted, but elections were held in spite of them.
These situations can’t 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.