Islamabad: Justice Munib Akhtar of the Supreme Court stated on Tuesday that the rights of millions of citizens in the nation were connected to elections and emphasized that it was in the general interest to hold elections within 90 days.
Elections are related to the rights of the people of Punjab and Khyber Pakhtunkhwa, he said. The judge made these statements during the hearing of the Election Commission of Pakistan’s petition asking the Supreme Court to reconsider its April 4 order calling for elections to the Punjab Assembly to be held on May 14. Justices Ijazul Ahsan and Akhtar, along with Chief Justice of Pakistan Umar Ata Bandial, made up the panel that heard the appeal. This is the same panel that had authorized the holding of 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.
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).
In a response submitted to the apex court today, a copy of which is available with media, 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.
