ISLAMABAD, Mar 28 (EW): Chief Justice of Pakistan Umar Ata Bandial has questioned that whether the Election Commission has the authority to extend the date of elections.
The CJP raised the question when the hearing of PTI’s petition against postponement of Punjab and Khyber Pakhtunkhwa elections resumed on Tuesday.
At the outset of the hearing, CJP Bandial welcomed newly appointed Attorney General of Pakistan (AGP) Mansoor Awan.
The CJP remarked that the court did not want to drag the matter. The question in front of the court was simple: Can the date for elections be extended or not?
“If the ECP has the authority [to extend the date] then the matter will be over,” he said.
Justice Jamal Khan Mandokhail, who is a member of the bench, questioned can the assemblies be dissolved on the whim of one man, adding that elections in the country would be held anyway but the question was who had the authority to extend them beyond 90 days.
The CJP Bandial noted that the AGP had raised the point to make political parties respondents in the case. “Rule of law is essential for democracy and without rule of law, a democracy cannot function.
“If the political temperature stays so high, problems will increase,” the apex judge added.
PPP lawyer Farooq H. Naek said that there was “anarchy and fascism” in the country today. He sought time for preparation but the CJP said you are a senior lawyer and aware of all the facts.
He said that the legal issue cannot be resolved in a vacuum. There is a need for discipline in society and political leadership, the CJP observed.
Naek said that the Constitution is a living document. Interpretation can only be based on the ground realities. What is good for democracy and the country in the current situation has to be determined.
He submitted that political parties were stakeholders, they must be heard.
Justice Jamal Mandukhel asked why this question is not raised in parliament, to which Naek said that it is being under consideration.
The AGP referred to the dissenting note of two judges, on which the CJP remarked that at this time the question is not about the decision but about the authority of the ECP.
The AGP submitted that there was a question of violation of the court order. If there is no order, referring to the 4-3 verdict of the Supreme Court, he added that then there is no question of violation of the verdict. It there is no court order, then the President cannot even give the date. The issue of the court’s March 1 order should be fixed first. In the present case, the plea is about the execution of the judgment.
The CJP remarked that the members of the bench are sitting to examine the question raised in the petition, your reliance is on a technical point. The jurisdiction of the Supreme Court is not restricted to the petition. At present, the question is not about giving a date, rather it is about cancellation of the date. Elections are vital for democracy, he added.
CJP Bandial said that it is to be determined whether the given date is legal or not. Is the ECP or anyone else holds authority to dictate to dissolve assembly or not?
Objecting to the arguments of the AGP, he said that the decision of two judges is not relevant to this case; this question can be reviewed later. The matter in hand is of vital importance, don’t divert attention from it.
The order
At the outset of the hearing, the CJP observed that under the constitution, general elections must be held on time, as timely conduct of general elections honestly, fairly and in accordance with the law is essential for democracy
The apex court on Tuesday issued a written order on the hearing on March 27 on PTI’s petition against postponing the general elections in Punjab and Khyber Pakhtunkhwa.
“Errors, deficiency or failure in conducting general elections affects the public interest and the fundamental right to vote,” the court order reads.
The following is the text of the court order:
“Learned counsel for the petitioners submits that the order dated 22.03.2023 issued by the Election Commission of Pakistan (ECP) annuls the polling date fixed by the President of Pakistan in exercise of his power under Section 57(1) of the Elections Act, 2017 read with Article 112 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). It is, inter alia, contended that the ECP does not have any power under the law and the Constitution to pass such an order. It appears that the ECP has in the said order taken refuge behind Article 254 of the Constitution. The interpretation of that provision of the Constitution by this Court, inter alia, in Presidential Reference No.1 of 1988 (PLD 1989 SC 75), Rashid Ahmed vs. Government of Punjab (PLD 2010SC 573) and Pakistan Peoples Party Parliamentarians vs. Federal of Pakistan (PLD 2022 SC 574) envisages post facto protection of the validity of the acts performed beyond the time fixed therefor by the Constitution. The said Article of the Constitution does not confer the prior authorization of delay in the execution of obligations required to be performed within a specified time prescribed by the Constitution. He further urges that the grounds given for extending the date of poll to 08.10.2023 have no backing of law or the Constitution. Such grounds may be available in several situations. In the past General Elections have been held notwithstanding that such factors were present at the time of the elections, for instance in 1988 and 2008.
“2. Timely General Elections held “honestly, justly, fairly and in accordance with law” are crucial for the democratic system of government mandated by our Constitution. Any flaw, deficiency or failing in the holding of General Elections is, prima facie, a matter of public importance that affects the fundamental rights of the voting public.
“3. In the first instance, therefore, notice is issued to the Respondents in this petition. The ECP shall come prepared to assist on the legal questions and the factual points raised in the petition.
“4. To come up tomorrow i.e. 28.03.2023 at 11:30 am for further hearing.”
