Is ECP authorised to extend date of elections, questions CJP

The CJP raised the question in the hearing of PTI's petition against postponement of elections

ISLAMABAD (Dunya News) – Chief Justice of Pakistan Umar Ata Bandial has questioned whether the Election Commission of Pakistan (ECP) has the authority to extend the date of elections. 

The CJP raised the question when the hearing of PTI's petition against postponement of the Punjab and Khyber Pakhtunkhwa elections resumed on Tuesday. 

At the outset of the hearing, CJP Bandial welcomed newly-appointed Attorney General for 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. 

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 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. The CJP said the legal issue could not be resolved in a vacuum. "There is a need for discipline in society and political leadership," he observed.

Naek said the Constitution was 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 Mandokhail asked why this question was not raised in parliament, to which Naek said "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 was 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 were 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 it had to be determined whether the given date was 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 the decision of two judges was not relevant to this case; this question could be reviewed later. "The matter in hand is of vital importance, don’t divert attention from it."

The AGP said that in the present case, the question was of implementation of the decision. The CJP replied that the members of the bench were sitting to examine the question raised in the petition, you are raising a technical point. The jurisdiction of the Supreme Court is not limited to the petition.

Justice Bandial said the decision had been implemented. 

Attorney General Awan said he would raise the question whether the present plea was admissible or not. He requested to form a full court as the matter was very important.

The CJP said the March 1 decision had been implemented and the matter should not be taken up again. "Don’t spoil the case by raising technical point again and again." 

Justice Mandokhail remarked that the number of bench members was an internal matter of the Supreme Court. "Explain whether holding elections in 90 days is not a constitutional requirement? Can the Election Commission cancel the election date?"

The chief justice remarked that he was grateful to Justice Jamal Mandokhail for elaborating on the matter. He remarked that people were standing in queues for flour. The Tehreek-e-Insaaf and the government had the responsibility to improve the situation in the country. Respect all national institutions, the CJP observed.

Advocate Ali Zafar said every institution had to work within its constitutional limits. 

On this, the CJP said that such behaviour was also expected from your top leadership also. The PTI has to take the initiative because the party approached the court. There is violence and intolerance in the country. There is economic crisis. There are lines for flour, think of the poor people instead of fighting with each other.

Ali Zafar said if the elections were delayed, the crisis would compound. 

 

CJP's remarks on salary cut 

During the course of hearing, the CJP also proposed a pay cut for himself and other judges so that the “vital task” of holding elections across the country could be funded and completed. He said “an entire budget is not required for elections … the government can cut back its expenditures and release Rs20 billion.” “A Rs20 billion cut can be made in the salaries of judges,” he remarked. 

The chief justice pointed out that security personnel in KP conducted the highest number of operations. He said 61 operations were conducted in Punjab, 367 in Sindh and 1,245 operations in KP. He said the situation in Punjab was different than that in KP and also cited the example of Turkiye where, he said, elections were being held in all the areas that were not struck by the earthquake.

Barrister Zafar said that the Election Act, 2017, highlighted that polling could only be cancelled in areas where problems existed. “It is not possible to postpone the entire elections.” 

The judge stated that the polls could only be delayed if an emergency was imposed (in the country). “Does the ECP order mention imposing an emergency?” he asked. The PTI lawyer replied, “absolutely not”. 

“Absolutely not was said by you (the PTI) to someone else,” quipped the CJP.

 

Remarks about ECP and analogy 

CJP Bandial also remarked that the decision to postpone polls in Punjab was penned in haste by the Election Commission of Pakistan (ECP).

As for why the elections could be delayed, the chief justice said that while travelling by train in Sindh, he saw that it was submerged in water. He said train in Balochistan travelled at the same speed as that of people on foot while the rail route remained disconnected from Quetta. He said elections could be postponed where movement was difficult. 

 

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.”