By Special Correspondent
ISLAMABAD: The Supreme Court (SC) will take up today (May 15) the Election Commission of Pakistan’s (ECP) plea seeking review of its order of holding polls to the Punjab Assembly on May 14.
The petition will be taken up a day after the court-ordered polls deadline lapses. The top court had on Friday fixed the case for today. A three-member bench – the same that had issued the order for elections in Punjab on May 14 – comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Munib Akhtar and Justice Ijazul Ahsan will take up the plea.
SC judgment
In a unanimous judgment on April 4, the three-member SC bench had nullified the ECP’s decision to extend the date for election in the province from April 10 to October 8, 2023 and fixed May 14 as the new polls date. It had also directed the federal PDM government to release Rs21bn for the elections in Punjab and Khyber-Pakhtunkhwa and provide a security plan to the ECP regarding the elections. However, in reports submitted to the Supreme Court in subsequent days, the electoral body had told the court that the ruling coalition was reluctant in releasing the funds.
The ECP had contended that staggering polls by holding them in Punjab and Khyber-Pakhtunkhwa separately, before elsewhere in the country, was not feasible since it would incur more expenses compared to holding the exercise on the same day.
On May 3, with less than two weeks to the May 14 polls date ordered by the top court, the ECP had filed its review petition against the April 4 court order. The review petition was filed through Advocate Sajeel Shehryar Swati a day after the government and the PTI developed a consensus on holding general elections for the four provincial assemblies and the national assembly on the same day. Both parties, however, failed to agree on a date for the elections.
ECP’s plea
In its plea, the electoral body said changing the election schedule/programme was the solitary domain of the Election Commission under Section 58 of the Elections Act, 2017. It asked the top court to withdraw its April 4 decision “in the interest of justice”, urging that Article 254 of the constitution should be invoked to stultify the constitutional imperative of holding the polls within 90 days adding the apex court should also look into the ground realities. The provision suggests that failure to comply with the requirements as to time does not render an act invalid.
“All provisions of the Constitution are required to be read together in harmony to make the provisions effective, workable and meaningful,” the review petition read as it further said the April 4 order by the top court was “per incuriam” (lack of jurisdiction) to the Constitution, therefore, it needs to be revisited.
The petition stated that Punjab and Khyber-Pakhtunkhwa have 173 and 55 National Assembly seats respectively out of a total of 326 seats of the House, which makes the total seats for Punjab and Khyber-Pakhtunkhwa about 72 percent of the total strength of the national assembly.
The general elections to the Assembly are due in the near future, as it is completing its term in August 2023, the electoral body said adding that it requires government machinery which is non-partisan to conduct the general elections fairly and in accordance with the law.
It urged the apex court to consider the ground realities in true perspective since if the polls are held while permanent governments are in place in Khyber-Pakhtunkhwa and Punjab, the sanctity, objectivity and fairness of the elections to the 72 percent of the general seats of the House would inevitably be compromised.
It is not conceivable why the apex court took upon itself the task of appointing the election date which ‘certainly is not the constitutional function assigned to the judicial organ of the state’, the review petition read adding the change of election programme was the solitary domain of the Election Commission under Section 58 of the Elections Act.
The Constitution is silent on the change of elections date and when the constitution itself is silent, recourse had to be made to the Elections Act, said the petition further.
The ECP petition recalled the general elections of 2008 was delayed by 40 days by it keeping in view the exigency and requirement of that time. That is why, the legislature while enacting Section 58, put the overriding phrase “notwithstanding anything contained in Section 57”, at the very start of Section 58(1), knowing it all well that Section 57 enumerates something which was contrary to what Section 58 would consider as permissible.
