ISLAMABAD: The Election Commission of Pakistan (ECP) has requested the Supreme Court to review its order to hold the general election in Punjab on May 14, claiming the verdict was not in accordance with the Constitution and previous judgments and lacked regard for the law or the facts.
On April 4, a three-judge bench of the court headed by Chief Justice Umar Ata Bandial had directed the government to release Rs21 billion for the elections in Punjab and Khyber Pakhtunkhwa, and had fixed May 14 as the new date for elections to the Punjab Assembly, after quashing the electoral body’s decision to extend the polls date from April 10 to October 8.
The court had also instructed the government to provide a security plan to the tribunal regarding the polls and keep the court informed of its measures.
In response, the ECP had submitted reports to the court blaming the Pakistan Democratic Movement (PDM) coalition for delaying the release of funds. The commission had argued that holding staggered polls in Punjab and KP would be more expensive than holding the exercise on a single day.
Additionally, the ECP had said the security apparatus required advance preparation and was already depleted.
With less than two weeks to go before the May 14 election date set by the court, the ECP has filed a review petition through Sajeel Swati. The petition seeks a review of the court’s April 4 verdict on multiple grounds.
This comes after the government and PTI developed a consensus on holding elections across the country on the same day but have yet to decide on a date. The hearing for the petition is yet to be fixed.
The application said that “the framers of the Constitution have given the judicial institution a pivotal role in safeguarding and preserving the Constitution, but have at the same defined the ambit and scope of judicial intervention under sub-article 2 of the Article 175 of the Constitution”.
The law mentioned above reads: “No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.”
The electoral body said the superior courts in Pakistan had been granted a special power by the Constitution to judicially review actions and decisions taken by public bodies, but “never substitute their own decision in lieu of the public bodies”.
“The superior courts can define the contours within which the power (which vests in the public bodies) is or is to be exercised. At no instance, can the superior courts take upon themselves the role of the public body. With utmost deference, the appointing of the date for the election is not the mandate of superior courts under the Constitution.
“Such power exists elsewhere under the Constitution but certainly does not lie in a Court of law,” the plea pointed out.
Therefore, it highlighted, while passing the order on April 4, the court “disregarded its constitutional jurisdiction and assumed upon itself the role of a public body in giving a date [for elections]; thus intervention by the Court is necessitated to correct an error which has effectively changed the settled constitutional jurisprudence of the country.”
The petition also highlighted the “trichotomy of power”, saying that the division of power between different organs of the state was the “hallmark of the Constitution” and “essential sine qua non” for the smooth and efficient functioning of the country.
“This well-embedded constitutional concept isolates the three organs from interfering and treading into the domain of the other. The judicial institution has been conferred the power to judicially review the actions and decisions of the executive while at the same time being restrained from exercising the executive authority itself.”
The commission highlighted that the announcement of the date of general elections was “vested in the bodies” and not the judicial institution as per the Constitution.
“Therefore the impugned order under review, humbly submitted, has breached the salient principle of the trichotomy of powers and thus is not sustainable,” it stated.
The ECP explained that the conduct of free, just, and fair elections in accordance with the law was the “sole responsibility” of the commission.
It went on to say that the Constitution had assigned the task of appointing the date for general elections to the governor (in case of the dissolution of a provincial assembly) or the president (if the provincial assembly stands dissolved by efflux of 48 hours).
“But for a change of the date, the Constitution is silent, and Section 58 of the Election Act, 2017, comes into play.” The law allows the ECP to alter the election programme at any given time.
The ECP petition recalled that the SC, in its March 1 order regarding holding elections to the Punjab and KP assemblies within 90 days, had relied upon Section 57 of the Elections Act, 2017 to designate the president as authority for the appointment of date where the assemblies stood dissolved by efflux of time.
“The Hon’ble Supreme Court identified an authority for announcing the date for the general elections (i.e. the president) by interpreting the constitution as well as the law and restraining itself from appointing a poll date, keeping in view the well-entrenched principle of trichotomy of powers.
“The order under review [April 4], submitted with utmost humility, also goes contrary to the spirit of the order dated 01.03.2023 where this august court found the repository of the power being president under section 57 of the Constitution to appoint a poll date for general elections where the assemblies stood dissolved by efflux of 48 hours. It is also not conceivable why this Hon’ble Court took upon itself the task of appointing a poll date which certainly is not the constitutional function, respectfully submitted, assigned to the judicial organ of the state,” the plea added.
It reiterated that the change of the election programme was solely the domain of the ECP, adding that the SC “should have exercised judicial restraint” instead of appointing the election date itself and had therefore made the commission “virtually toothless”.
“Without a strong commission, the honesty, fairness, and above all, the integrity of the elections cannot be ensured.”
