The Supreme Court is hearing a review petition filed by the Election Commission of Pakistan against its order whereby it fixed 14 May as the date for election in Punjab and the announcement of the relevant schedule for holding it. In the review petition, it has been pointed out that fixing a date for election is not the mandate of the Supreme Court under the Constitution and such powers existed somewhere else.
The petition further prays that the framers of the Constitution did not grant the courts the jurisdiction to assume the role of public bodies and that while passing the order under review the Court disregarded its constitutional jurisdiction necessitating correction of an error which has effectively changed the settled constitutional jurisprudence of the country.
It is not tenable as to why the ECP took so long to file the review petition which should have been done immediately after the verdict was announced by the three-member bench headed by the CJP. But as is said, it is never too late. The petition has been filed under Article 188 of the Constitution which says “The Supreme Court shall have power, subject to provisions of any Act of the Majlis-e-Shoora (Parliament) and of any rules made by the Supreme Court to review any judgment pronounced or any order made by it.”
The position taken by ECP is absolutely right. The Supreme Court while delivering the verdict violated the Election Act 2017 which assigns the responsibility of announcing the date of election to the President after consultation with the Commission and makes it obligatory on the ECP to announce the schedule of elections.
The Act also empowers the ECP to change the announced date by recording the reasons for such a change. In this regard Sections 57 and 58 of the Act are relevant. Perhaps it would be in order to quote the texts of both these sections of the Act for the benefit of the readers. Section 57(1) says ”The President shall announce the date or dates of the general elections after consultation with the Commission” Section 58 of the Election Act 2017 reads “Notwithstanding anything contained in section 57, the Commission may, at any time after the issue of the notification under sub-section (1) of that section, make such alterations in the Election Programme announced in that notification for the different stages of the election or may issue a fresh Election Programme as may, in its opinion to be recorded in writing, be necessary for the purposes of this Act.”
The ECP acted in conformity with the first verdict of the Supreme Court which it delivered after taking suo motu notice of delay in elections in Punjab. Paragraph 14 of the Order said “The ECP would act in conformity with sections 57(1) and 58 of the Election Act 2017.”
The ECP fully complied with the Supreme Court decision. It did consult the President who announced April 30 as the election date as per requirement of section 57(1) of the Election Act. However when ECP did not receive the required support from security institutions to perform duty at the polling stations as well as the finances required for election, it justifiably postponed the elections in terms of the powers conferred on it by section 58 of the Election Act 2017.
The developing situation does not augur well for the country and its future as a democratic entity. Either the Parliament or the judiciary will have to step back to defuse the situation. In my view the review petition filed by ECP has provided a good opportunity for an escape route to the judiciary by reviewing its verdicts which in itself represent a breach of the Constitution. The judicial history of the world is replete with instances where the judiciary has rectified the wrong decisions given by it. The Supreme Court of the USA is reported to have reviewed 146 such cases.
In the light of the above facts the Supreme Court verdict OF April 4 in which it held that the postponement of the election date by ECP as unconstitutional and that it did not have the power to do so is bereft of any legal or constitutional basis. The ECP’s decision to postpone election date is not only legal but is also covered by Article 254 of the constitution which reads “When any act or thing is required by the constitution to be done within a particular period and it is not done within that period, the doing of that act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period.”
As is evident the action of the ECP enjoyed the protection of section 58 of the Election Act as well as Article 254 of the Constitution. Therefore it could not be declared as unconstitutional. The ECP acted according to Election Act 2017 which is an enactment of Parliament and no court can give any verdict against its clauses unless the Act itself is declared against the Constitution. The Supreme Court, while announcing the date of election and announcing its schedule, actually usurped the powers of another constitutional body in breach of the trichotomy of powers as enunciated in the constitution.
The judges clearly seem to have trespassed into the territory of another constitutional institution and also delivered a verdict which has no constitutional or legal basis. Judges, whether of the lower courts or the highest court, are bound to adjudicate in conformity with the law and the constitution and not act like medieval Kings who were laws unto themselves.
It is most regrettable to note that some of the verdicts given by the SC amidst the burgeoning political crisis in the country are not marvels of jurisprudence. They have aggravated the political crisis in the country. The Supreme Court went beyond the domain of its constitutional powers while rendering its opinion on Article 63-A of the Constitution which amounted to rewriting the Constitution. In doing so it encroached upon powers of Parliament.
As if the foregoing indiscretions committed by the Supreme Court were not enough, it took another unprecedented step by staying the implementation of the Supreme Court Review of Judgments and Orders Bill 2023 even before it received the nod of approval from Parliament. The constitutional and legal experts believe that nothing of sort has ever happened in the history of jurisprudence in any country of the world. The courts cannot prevent the parliament from enacting a law. However, they can have a look at it to see whether the law is in conformity with the Constitution or not after it is passed by the parliament.
The cumulative effect of the judicial overreach is that it has created an ambience of confrontation between judiciary and Parliament which has not only rejected the verdict of the Supreme Court in regards to election date but has also taken a strong exception to the stay order given on the Supreme Court Review of Judgments and Orders Bill 2023.
The developing situation does not augur well for the country and its future as a democratic entity. Either the Parliament or the judiciary will have to step back to defuse the situation. In my view the review petition filed by ECP has provided a good opportunity for an escape route to the judiciary by reviewing its verdicts which in itself represent a breach of the Constitution. The judicial history of the world is replete with instances where the judiciary has rectified the wrong decisions given by it. The Supreme Court of the USA is reported to have reviewed 146 such cases.
