SC adjourns hearing of ECP plea on Punjab polls, Review Order Act till June 13
Pakistan
A three-member bench heard the review petition filed by the ECP and Review Order Act
ISLAMABAD (Dunya News) – The Supreme Court on Wednesday adjourned the hearing on the Election Commission's (ECP) review petition against its decision to hold elections in Punjab and and the Supreme Court (Review of Judgement and Orders) Act till June 13.
A three-member bench headed by Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Muneeb Akhtar heard the review petition filed by the ECP, federal and provincial governments, and the Supreme Court orders act.
Earlier, the bench clubbed together pleas against the recently-enacted Review Act, 2023, with the ECP’s petition against its April 4 order of holding polls to the Punjab Assembly on May 14.
At the outset of the hearing, Chief Justice Bandial remarked that the Punjab election review case and Supreme Court (Review of Judgements and Orders) Bill, 2023, be heard simultaneously.
The chief justice summoned PTI lawyer Ali Zafar to rostrum and sought his stance on the issue.
Barrister Zafar replied that the new law is inconsistent with the Constitution and a continuation of the Supreme Court (Review of Judgements and Orders) law.
The Chief Justice remarked that we have received some petitions against the new review law. We have to take up the issue at some stage. So attorney general for Pakistan should be summoned.
After notice to the attorney general on the review law, the bench will hear the election cases under the act, the chief justice observed.
It may be noted on May 29, the Supreme Court adjourned the hearing of the ECP case sine die. However, on June 5, the court scheduled the hearing of the case on June 7 (today).
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The Supreme Court (Review of Judgement and Orders) Act
Petitioner Advocate Riaz Hanif Rahi requested the court to "set aside [the Act] as unconstitutional being ultra vires, void ab-initio and issued without jurisdiction [and] of no legal effect."
Citing Articles 188 and 191 of the Constitution, he contended that the law is “unconstitutional” and has been passed by the government for “its personal advantage to avoid the regime of present CJP without taking into consideration the public interest”.
Rahi further submitted that the respondents had no jurisdiction to go beyond their constitutional limits under “extraneous considerations and ulterior motives”.
The law came into effect on May 5, 2023.
Referring to the Act, Law Minister Azam Nazeer Tarar alluded to Article 188 of the Constitution and said it [the law] empowers the SC subject to the provision of any Act of Majlis-e-Shoora and any rules made by the top court, to review any judgement pronounced or any order made by it. He said the latest legislation is procedural in nature.
The law minister said the bill was formulated under the spirit of Article 188 of the Constitution.
ECP plea
Barrister Zafar suggested that the court should continue hearing the ECP’s review petition, saying he had prepared his arguments. The court can simultaneously also hear pleas against the review of judgments law.
He also suggested constituting a larger bench if the court deems it necessary.
Justice Akhtar observed that if the review law was applicable to the ECP petition, its lawyer would have to argue before the larger bench again.
“How can the court continue hearing the ECP case if the Supreme Court (Review of Judgments and Orders) Act 2023 has come into force? Is the new law not applicable to this case? Do you think the ECP’s petition should be heard as per the old law?” the judge asked Zafar.
He replied that the case should, at the moment, be head as per the previous law.
“This is not a brand new case,” Chief Justice Bandial said. “This is an appeal against a decision that was taken previously and appeals have several limitations.”
The CJP noted that a lot of time had passed in hearing the arguments and recalled that the ECP lawyer has already presented arguments on the scope of a review. “If the matter goes to the larger bench, arguments will have to be heard once again.”
“This matter is linked to a national issue,” he observed. “Our decision regarding [polls on] May 14 cannot be withdrawn. Elections in 90 days is a constitutional requirement.”
“Everyone agrees with the Constitution, but not everyone is clear on enforcing the Constitution.”
The chief justice pointed out that the ECP had given October 8 for holding polls but then said the situation had changed due to the May 9 violent protests following PTI chief’s arrest.
“ECP should have the ability to hold elections in any and every circumstances,” he remarked.
Chief Justice Bandial said it was good that the government and institutions decided to argue their case before the court. “They were otherwise protesting at the gate of the court,” he recalled, referring to the Pakistan Democratic Movement’s demonstration outside SC last month.
“What was the purpose of that protest?” the CJP asked. “The responsibility of dispensing justice is of Maula Karim [God],” he said, adding that the court was striving to ensure the rights of the people and those who interfered in this were met with “dire consequences”.
At one point, Barrister Zafar put forward a request before the court and asked the bench to take a decision on the ECP’s petition. “Five judges … seven judges … they are playing mathematics,” he contended.
The lawyer reiterated that the review of judgments law was unconstitutional. “I had objected to it in the Senate too […]. If you want to bring changes to the law, do it through amendments,” he said.
CJP Bandial asked, “Are you trying to say that the appeal was given a new name under a new law?”
The PTI counsel replied that the scope of review and appeal were separate in the law. “But the review was turned into an appeal by going against the Constitution,” he said.
The CJP stated that the law had been restricted to Article 184(3). The article grants the SC powers to issue an order if it considers a question of public importance with reference to the enforcement of fundamental rights involved.
Subsequently, the court adjourned the hearing till June 13.
