ISLAMABAD: Chief Justice of Pakistan (CJP) Umar Ata Bandial on Thursday while terming the court guardian of the Constitution, said it will have to see how long constitutional provisions could be held in abeyance.
“Delay in elections will allow “negative forces” to swing into action and “play tricks” on the country”, CJP Umar Ata Bandial gave the remarks during hearing of the review petition filed by the Election Commission of Pakistan (ECP) against the apex court’s decision to conduct polls in Punjab on May 14.
The bench headed by the CJP, included Justice Munib Akhtar and Justice Ijazul Ahsan – the same bench that issued the directive on April 4.
Following the bench’s order, the electoral watchdog had informed the apex court that it could not conduct elections owing to security concerns and a paucity of funds.
It then filed a review petition, stating that appointing a date for elections is not the Supreme Court’s mandate.
On Thursday hearing of the review petition began with more arguments from the ECP lawyer which irritated CJP Bandial. “Tell us what your main point is,” he asked.
Sajeel Swati responded: “Supreme Court Rules cannot curtail constitutional powers.” Noting his point, Justice Ahsan instructed him to proceed.
“The full court has ruled in several cases that the scope of the review is not limited,” Swati then contended. On this point Justice Akhtar reiterated that if Swati’s argument was accepted, “the Supreme Court Rules will become null and void.”
“At times, even Parliament’s power to legislate is also limited,” the ECP counsel submitted.
Term of interim government
The bench then directed Swati’s attention to the role of the interim government.
The ECP lawyer said that family members of caretaker cabinet cannot participate in elections.
“In order to maintain transparency in elections, this ban was added to the Constitution.”
Justice Ahsan then inquired: “If a provincial assembly is dissolved in six months, will the caretaker government remain for 4 and a half years? Will we wait for the dissolution of the National Assembly for 4 and a half years?”
Swati confirmed, saying that the caretaker government would work in the respective province for 4 and a half years.
He argued that one article cannot be violated while implementing another, adding that Article 254 — which says that an act in not rendered invalid merely because of failure to comply with its time stipulation — lends support to a delay of 90 days.
“A 90-day delay in elections can be redressed,” he said.
“The redressal is that the elected government come instead of a caretaker government for 4 and a half years,” CJP Bandial cut in.
“How is it possible that the elected government remain for 6 months while a caretaker government [stays in power] for 4 and a half years?” he asked.
“Where is it written in the Constitution that the [term of] a caretaker government can be extended?” Justice Ahsan asked, adding that doing so would be against the spirit of the Constitution.
Swati submitted that the court’s observation was correct.
ECP’s role
The argument then turned to the role of the ECP and its handling of the situation in the county following the dissolution of the Punjab Assembly in January this year.
“Conducting transparent elections is the responsibility of the Commission. The commission cannot say that there are no funds, so elections cannot be held,” Justice Ahsan remarked.
He further added: “Don’t think that Khyber Pakhtunkhwa has been sidelined by us.”
During the proceedings, CJP Bandial accused the electoral watchdog of “talking about politics” — an allegation that Swati rejected, saying: “The Election Commission is an independent body, it is not talking about politics.”
However, he added, the Commission cannot fail to ensure transparent elections.
Justice Akhtar remarked that the ECP had earlier cited funds and security to be the reason for its inability to conduct polls.
“Now you are trying to run away from [your responsibility] by talking about the Constitution.”
The CJP then asked how long the judiciary — being the guardian of the constitution — was expected to remain silent.
“How long can Article 224 be kept in cold storage?” he asked, referring to the Article that discusses the ECP’s role in case of dispute over setting up an interim government.
“The events of May 9 confirmed the fears of the Election Commission,” Swati said.
However, the CJP once more cut him off, saying that the court would talk about “principles not concerns”.
Justice Akhtar further added that “general elections” do not mean only National Assembly elections.
“Five general elections are held simultaneously in elections,” he said.
Coming down hard on the ECP counsel, the bench asked why the commission had cited funds and security as reasons for an inability to conduct elections.
“Why was it not said earlier that elections are not possible even if resources are available?” Justice Akhtar asked.
CJP Bandial then asked: “Which provisions of the Constitution will be invalidated by holding the election on the same day?”
He remarked that, perhaps, 10 years from now, the system would be strong and all the elections will be possible separately.
“At present, we are travelling in the darkness with no destination in sight,” he said.
‘ECP inefficient’
Turning to the issue of the Punjab polls and the reasons the commission had cited for not being able to hold elections in Punjab, the CJP said that the Commission should not accept the excuse of the Ministry of Finance.
Citing the supplementary grants of Rs20 billion approved for members of the assembly yesterday, CJP Bandial came down hard on the electoral watchdog for being “inactive” and said that the ECP “needed to do its homework” before coming to the courts.
“The Election Commission also needed Rs21 billion. [The commission] should get a concrete explanation from the government [as to the cited scarcity of funds].
He further said that the Commission should have thought about its demands.
“The Commission asked for 450,000 security personnel. That is the total strength of the operational force,” he said, asking what the need of the army in the elections was.
“Army is only a symbol for security, during elections. Polling may be delayed where polling stations are sensitive.”
Justice Akhtar then added that the Commission’s concerns that a provincial assembly may influence the elections of the NA were “unfounded”.
“Members of the National Assembly can also influence the provincial elections. If the National Assembly is dissolved first, will the commission dissolve the provincial assembly?”
“If the Election Commission is transparent and strong, there can be no interference,” the CJP said, shutting down Swati’s arguments.
Taking another tract, Swati said that the date of October 8 was suggested keeping the country’s political situation in mind.
“Elections are not possible in the current situation…. The events of May 9 confirmed our fears.”
“You have again come to the current situation from constitutional principles,” Justice Munib said, prohibiting the ECP counsel from bringing up events of May 9.
The hearing was adjourned till May 29 (Monday).
The petition
The electoral watchdog filed a review petition in the apex court against its order passed on April 4, setting May 14 as the date for holding elections in the province of Punjab.
It had submitted that, under the Constitution, the power of the announcement of the date for the general elections is vested in bodies other than any judicial institution; therefore, the impugned order under review had “breached the salient principle of the trichotomy of powers and thus is not sustainable”.
Elections — principally a domain of the election commission under Article 218(3) of the Constitution read with other provisions of the Constitution — is the sole responsibility of the Election Commission of Pakistan, the ECP had contended.
Moreover, the ECP had submitted that in the presence of an elected government in Punjab, the general elections to the National Assembly cannot be conducted fairly.
“Fair elections cannot take place in the presence of an elected government in Punjab”, the review petition had stated adding that the voter/electorate is likely to vote in favour of the candidates of the political party which has the elected government in Punjab.
