‘Should have exercised judicial restraint’: ECP files petition in SC seeking review of order on Punjab pollsPakistan
The Election Commission of Pakistan (ECP) filed on Wednesday a petition in the Supreme Court seeking a review of the latter’s order on holding polls in Punjab on May 14, saying that the verdict was “per incuriam (lacking regard to the law or the facts) to the Constitution, law and previous judgments”.
In a unanimous judgment on April 4, a three-member bench of the apex court led by Chief Justice Umar Ata Bandial 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 Oct 8.
It had also directed the government to release Rs21 billion for the elections in Punjab and Khyber Pakhtunkhwa and provide a security plan to the ECP regarding the polls. Keep the court in the loop regarding the government’s measures, the top court had added.
However, the ECP had, in reports submitted to the top court in the subsequent days, blamed the federal coalition for being reluctant in releasing the funds.
The ECP had said that staggering polls by holding them for Punjab and KP assemblies were not feasible since it would incur significantly more expenses compared to holding the exercise on one day. It had also taken the view that an already depleted security apparatus would require weeks in advance for its movement.
With fewer than two weeks to the May 14 election date ordered by the court, the election commission filed its plea.
In a review petition filed through Advocate Sajeel Shehryar Swati today — which comes a day after the government and PTI developed a consensus on holding elections across the country on the same day but are yet to decide on a date — the ECP urged the SC to review its April 4 verdict on multiple grounds.
The application, which has been seen by Dawn.com, stated 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 says: “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 that 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.”
Moreover, the ECP highlighted that it could only perform its constitutional duties and functions if the requisite aid was provided by the federation and the provinces.
But, it highlighted, that as of today neither the funds for elections were released nor the security concerns of the commission had been met.
“In an environment that is politically polarised and political parties are at loggerheads to the extent that they are intolerant of each other’s existence, and the security risks are dire, the holding of general elections would not be free, fair, and honest.
“It is these factors that prevailed upon the commission while passing the order impugned in the original proceedings — something which this Hon’ble Court apparently did not consider in its true perspective. Without a secure environment, no election can be held in a free and fair manner nor can the consequent election results be considered sanctified,” the ECP added.
Furthermore, the commission highlighted that the Constitution needed to be read as a whole and no provision of the Constitution could “override, stultify or vitiate” another provision.
“In case of any conflict, the different provisions of the Constitution have to be harmonised and read together and in case of conflict the provision containing a lesser right has to yield in favour of the provision containing a higher right/norm,” it stated.
The petition said that Article 218(3) of the Constitution — which states that it was the duty of the ECP to organize and conduct the elections — contained a “higher norm” that Article 224 which entailed the 90-day requirement for holding polls as it contained the “foundational principles for creating a meaningful constitutional democracy in the country”.
“The duty to hold elections within 90 days is a constitutional imperative and command which cannot and should not be ignored but at the same time the duty to hold elections honestly, freely, and fairly is fundamental to the very existence of the constitutional democracy; without such fairness, the very spirit of the Constitution itself shall stand defeated.”
The plea further stated that in the presence of an elected government in Punjab, it was not possible to hold free and fair elections to the National Assembly because the newly-elected provincial setup would be able to “influence” the elections.
It elaborated that Punjab and KP had 173 and 55 national assembly seats respectively out of 326 total seats of the National Assembly, which made it about 53 per cent of the total for Punjab and 16pc for KP (cumulatively about 72pc) of the total strength.
“The general elections to the national assembly are due in the near future, as National Assembly is completing its term in August 2023. In order for the Commission to perform its constitutional duties to conduct the general elections honestly, justly, fairly, and in accordance with the law, the Commission requires the government machinery which is non-partisan and has no inclination towards any political party.
“If elections to the national assemblies are held while permanent governments are in place in Punjab and KP (73pc of the total national assembly seats), the sanctity, objectivity, and fairness of the elections to 73pc of the general seats of the National Assembly would inevitably be compromised,” the ECP stated.
In conclusion, the petition said that Article 254 of the Constitution — which states that the failure to comply with the requirement as to time does not render an act invalid — should not be used to “stultify the constitutional imperative of holding elections within 90 days” and the court should instead “keenly look at the ground realities”.
“In view of the aforesaid, it is most respectfully prayed that this August Court may graciously accept the instant Review Petition by revisiting, reviewing, reconsidering, and recalling its Impugned Judgment dated 04.04.2023, in the interest of justice and equity,” it added.
Despite the SC’s April 4 order on Punjab polls, the government has yet to release the funds and 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 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 — nullifying 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 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 final round of the dialogue was completed last night.