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Rights of millions of people linked to elections, says SC’s Justice Akhtar

ISLAMABAD, MAY 22: Supreme Court’s Justice Munib Akhtar said on Tuesday that the rights of millions of people in the country were linked to elections and stressed that the public interest was in holding polls within 90 days.

“The rights of the people of Punjab and Khyber Pakhtunkhwa are connected to elections,” he remarked.

The judge passed these remarks as a three-member bench heard the Election Commission of Pakistan’s petition asking the top court to revisit its April 4 order of holding polls to the Punjab Assembly on May 14.

The bench hearing the plea comprised Chief Justice of Pakistan Umar Ata Bandial and Justices Ijazul Ahsan and Akhtar, the same bench that had issued the order for holding elections in Punjab on May 14.

During the previous hearing, Chief Justice of Pakistan (CJP) Umar Ata Bandial had expressed hope that talks between the coalition government and the PTI could end the stalemate on holding polls in the country.

The hearing
At the outset of the hearing today, ECP lawyer Sajeel Swati came to the rostrum and said that the federal and Punjab government had submitted their responses in the case, which was obtained by the electoral watchdog today.

“I think the PTI has not submitted its response yet,” the CJP said, to which Swati stated that ECP had yet not received the responses of PTI or any other political party.

“Please give us a chance to review all the responses,” the ECP lawyer requested. However, Justice Bandial asked Swati to present his arguments in the case.

“If you want to raise any new point in the next hearing, you can do it,” the top judge remarked, asking about the new grounds that could be taken in the review petition.

Subsequently, Swati started presenting his arguments. He contended that the jurisdiction of ECP’s review petition was not limited to constitutional cases, saying that the top court’s jurisdiction could be extended but not reduced.

In cases pertaining to reviews, the SC’s jurisdiction is limited to civil and criminal cases, the lawyer said.

Here, Justice Ahsan pointed out that approaching courts for fundamental rights was regarded as a civilian case. “But proceedings under Article 184(3) are not civil in nature,” Swati argued.

The judge responded that one section of Article 184(3) falls under public interest and the other pertains to fundamental rights.

“If a case linked to elections comes [to the SC] from the high court, will it not be a civilian case?” Justice Munib asked, to which the ECP lawyer said that the constitutional authority of a high court was greater than that of the apex court.

“According to you, if there is an appeal from the High Court, the jurisdiction is limited,” Justice Akhtar pointed, responding to Swati. “But in the review petition, your position is that the scope is not limited. Is this not discrimination in the case of fundamental rights?”

He also asked why the SC would create ambiguity in its jurisdiction.

At that, the ECP lawyer said that Article 184(3) did not give the right to appeal, adding that due to this the scope of the review petition could not be limited.

“The court has to take into account the requirements of justice in the review,” Swati went on to say, adding that new points could only be raised in constitutional cases.

“Are you arguing that a review under 184(3) should be heard as an appeal?” Justice Akhtar asked, to which the lawyer replied in the affirmative. “In cases pertaining to Article 184(3), the jurisdiction of review is not limited,” Swati added.

Meanwhile, Justice Ahsan stated that if the ECP lawyer’s argument was accepted, a hearing would have to be immediately conducted in the matter of review. “The Constitution doesn’t say that the scope of the right to appeal and review is same.”

Justice Munib also observed that accepting the ECP’s request would increase complications.

For his part, Swati said that the Constitution did not limit the scope either. “For absolute justice in reviews, the court can also use Article 187 of the Constitution.”

At that, the CJP intervened. “Don’t turn a review into an appeal. Article 184(3) of the Constitution does not give the right to appeal. There should be clarity regarding the scope in the Constitution,” he said.

The ECP lawyer then requested the court to issue a detailed order, saying that it would make things easier.

On the other hand, Justice Bandial remarked that the government and the electoral body were serious about the proceedings, recalling that previously the government had raised objections to the bench.

“They either raised the question of a full court or the 3-4 judgment issue,” the CJP said and asked Swati why the same arguments put before the court today were not raised earlier. “Has any other institution forced the ECP to adopt this stance?”

Subsequently, the hearing was adjourned till 12pm tomorrow (Wednesday).

PTI response to ECP plea
In a response submitted to the apex court today, a copy of which is available , the PTI called the ECP’s review petition “unjust” and “clearly outside its domain”.

“It is totally wrong and unjustified on the part of ECP to suggest that the Supreme Court has ‘fixed’ the date for polling itself and ‘assumed’ the role of a public body,” the party said.

It argued that the SC issued the April 4 order in light of the Constitution when the ECP announced withdrawing the election programme as “neither the Constitution nor the law empowers ECP to extend the date of election beyond 90 days as provided in Article 224(2) of the Constitution”.

The party termed the ECP’s allegation that the Supreme Court has “breached the principle of trichotomy of powers” as a “totally unjustified accusation”. It said that the interpretation and implementation of the Constitution was the “duty and obligation bestowed by the Constitution itself upon the Supreme Court”.

The PTI also argued against the ECP’s claim that it was empowered to announce the election date according to Article 222 of the Constitution and highlighted that the apex court had already held in its March 1 verdict that “it is the president who is to announce the date of election to the Punjab assembly under Section 57 of the Election Act, 2017”.

It said the top court had “already decided that there is no conflict between Section 57 and Article 222 of the Constitution and that ECP does not have the power to give a date of election”.

The response also rebutted ECP’s argument that the “Supreme Court is not an appellate forum over decisions of ECP”. It contended that ECP’s decisions were subject to the jurisdiction of the SC under Article 184(3) (original jurisdiction of Supreme Court) of the Constitution as well as Article 199 (jurisdiction of high court) of the Constitution.

Arguing against the ECP’s reasoning that the “political parties are at loggerheads and the security risks are dire”, the PTI said the “ECP is urging the Supreme Court to apply the doctrine of necessity”, which it said was dead and cannot be revived.

It further said that the ECP statement was contradictory to its own previous stance where it had said it was “willing and ready to conduct elections if given the aid and security”.

Regarding the ECP’s argument that the general elections will not be fair as there will be an elected assembly in Punjab, the PTI said it was “clearly a political debate which falls outside the domain of ECP’s jurisdiction” and was not a matter that can be raised before the apex court.

“There is no provision in the Constitution which provides that the elections have to take place together in the national and provincial assemblies,” it added.

April 4 judgment
In a una­n­imous judgment on April 4, the bench had quashed the electoral body’s decision to extend the date for polls in the province from April 10 to Oct 8 and had fixed May 14 as the new date.

It had also directed the federal government to release Rs21 billion for elections in Punjab and Khyber Pakhtunkhwa and to provide a security plan to the ECP regarding the polls. Moreover, the court had instructed relevant authorities to keep it in the loop.

However, in reports submitted to the apex court in subsequent days, the ECP had said the ruling coalition was reluctant in releasing the funds.

It had contended that staggering polls by holding them in Punjab and KP separately, before elsewhere, was not feasible since it would incur more expenses compared to holding the exercise on one day. It had further said that an already depleted security apparatus would require weeks in advance for its mobilisation.

On May 3, with fewer than two weeks to the May 14 election date, the election commission had filed its plea seeking a review of the court’s April 4 order.

The review petition, filed through Advocate Sajeel Shehryar Swati, was submitted a day after the government and PTI developed a consensus on holding elections across the country on the same day. Both parties, however, had failed to agree on a date for the elections.

Elections impasse
The deadlock over the holding of elections in two provinces arose after the PTI dissolved its governments in Punjab and KP in January.

According to the Constitution, once an assembly is dissolved prior to completing its term, general elections for the house are to be held within 90 days from the date of dissolution.

The crisis began when despite the passage of almost 40 days since the assemblies were dissolved, the ECP and governors in both provinces did not give a date for polls. During this time, the Lahore High Court (LHC) had ordered the holding of polls in Punjab within the constitutionally stipulated timeframe but both the ECP and the governor filed an intra-court appeal, asking for clarity on who was supposed to finalise the date for polling.

The Peshawar High Court, on the other hand, was also hearing a petition asking for polls to be held in KP within the stipulated timeframe.

On Feb 22, the Supreme Court sprang into action, taking suo motu notice of the delay in announcing elections in the two provinces.

This began a long and dramatic chain of events — during which clear divisions and conflicts became visible within judges of the country’s top court — that eventually ended with the three-member bench’s verdict on April 4, ordering polls in Punjab to be held on May 14 and directing the federal government to release Rs21 billion for the exercise.

The top court did not give a decision on polls in KP, asking the petitioners to approach the Peshawar High Court on the matter.

However, despite the SC’s order on Punjab polls, the government failed to release the funds and to date maintains that elections to the National Assembly and all provincial assemblies be held on the same day.

On April 10 — the initial deadline set by the top court for the release of funds — Finance Minister Ishaq Dar tabled a money bill in the NA, seeking funds for conducting polls in Punjab and KP. The bill, titled Charged Sums for General Election (Provincial Assemblies of the Punjab and the Khyber Pakhtunkhwa) Bill 2023, was subsequently rejected by the NA.

Prior to that, the government-dominated standing committees of both Houses of Parliament also rejected the bill in their separate meetings.

The matter was then again taken up by the apex court, which directed the State Bank of Pakistan (SBP) to provide funds to the ECP for Punjab and KP polls by April 17.

The court directed the SBP to release funds worth Rs21bn for elections from Account No I — a principal component of the Federal Cons­olidated Fund (FCF) worth Rs1.39 trillion — and send an “appropriate communication” to this effect to the finance ministry by April 17.

Following the top court’s orders, the central bank allocated the funds and sought the finance ministry’s nod to release the amount to the ECP. But, the government’s approval was required to release the amount from the FCF while the government said it had to get the National Assembly’s approval for its release.

Subsequently, on April 17, the coalition government managed through the NA yet another rejection of its own demand for the provision of Rs21bn as a supplementary grant to the ECP for holding polls in the two provinces — defying the SC’s third directive for the release of funds for the purpose.

A day later, the SC, while hearing a defence ministry plea for same-day polls, warned the government of “serious consequences” if it failed to release the funds required for conducting polls in Punjab and KP. It had also said that since the office of the prime minister had primacy, the premier “must enjoy the confidence of the majority of the NA at all times”.

“It follows from the foregoing (and this is an important constitutional convention) that the government of the day must be able to secure the passage of all financial measures that it submits before the NA. This would be certainly true for a financial measure of constitutional importance,” the order said, adding that when viewed from this perspective, the NA’s rejection of the demand to release poll funds held “serious constitutional implications”.

On April 26, National Assembly Speaker Raja Pervaiz Ashraf — to convey the “sentiments and thoughts” of members of the House about the court’s orders on elections in Punjab and Khyber Pakhtunkhwa — wrote a letter to the CJP in which he urged the higher judiciary to “exercise restraint” and respect parliament’s legislative domain.

A day later, the SC granted temporary respite to the country’s main political parties and gave them time to hold dialogue on elections.

The talks between the PTI and the government were aimed at developing a consensus on a date for elections in one go across the country. After three rounds of talks, Ishaq Dar — who was leading the government side — told reporters on May 2 that both sides had agreed to hold elections to the national and provincial assemblies on a single date under the watch of caretaker setups, but it had yet to be decided what that date would be.

But while the finance minister and former prime minister Yousuf Raza Gilani claimed positive headway in the sitting, with both sides showing flexibility, PTI leader Shah Mehmood Qureshi regretted that no decision could be taken on “practicable proposals” put forward by his party.

Subsequently, in a four-page report submitted a day after the two sides concluded the make-or-break round of the much-awaited negotiations on polls, the PTI told the top court that “in spite of the best efforts of parties, no solution within the Constitution” was found.

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