Islamabad: Chief Justice of Pakistan (CJP) Umar Ata Bandial on Thursday warned that a delay in polls would allow negative forces to be active and play tricks on the country.
He said that the apex court will have to see how long constitutional provisions could be held in abeyance as the supreme court is the guardian of the Constitution.
The chief justice issued these remarks during hearing of the Election Commission of Pakistan’s review petition against the top court’s ruling to hold elections in Punjab on 14 May.
The bench that heard the plea included CJP Bandial, Justice Ijaz ul Ahsan and Justice Munib Akhtar, the same bench that issued the verdict on April 4.
ECP on polls delay
Following the bench’s order, the election commission informed the supreme court that it could not conduct polls owing to a paucity of funds and security concerns.
The electoral watchdog then filed a review petition, stating that appointing an election date is not the apex court’s mandate.
Today, the hearing started with more arguments from the election commission’s lawyer Sajeel Swati, which irritated the chief justice. He asked him to tell his main point. The lawyer responded that apex court rules could not curtail constitutional powers. Noting his point, Justice Ijaz ul Ahsan instructed him to continue.
The lawyer then proceeded, saying the full court has ruled in multiple cases that the scope of the review is not limited. On this point, Justice Munib Akhtar reiterated that if his argument was accepted, the apex court rules would become null and void.
The ECP counsel submitted that even the power of Parliament to legislate is sometimes limited. The bench then invited the lawyer’s attention to the interim government’s role. The ECP counsel said that family members and close relatives of the caretaker cabinet cannot participate in polls.
The ECP lawyer argued that it was necessary to have a caretaker government in place for the polls, and the procedure for forming a caretaker government was given in the Constitution.
Justice Ijaz ul Ahsan inquired if the caretaker government would remain in place for four and a half years if the provincial assembly was disbanded in six months. He also asked if the caretaker government would have to wait four and a half years for the disbanding of the National Assembly.
Swati contended that the caretaker government would remain in power in the respective province for four and a half years. He said that other actions could not violate an article of the Constitution. He added that Article 254 provides legal support to a delay of ninety days.
The chief justice said the solution might be a newly elected government coming in power for four and a half years.
The ECP counsel maintained that the election commission’s date for holding elections on 8 October was given “as per facts”. To this, Justice Munib Akhtar questioned what would happen if the election commission on 8 September said that polls were not possible in October.
He added that conducting polls was the duty of the electoral watchdog, not discretion.
CJP Bandial recalled that the counsel himself had said that the spirit of the constitution was in democracy. He asked how long democracy would be sacrificed, the public should get an opportunity to express their opinions.
The chief justice continued that the decision of the election commission to delay polls only mentioned a lack of resources. He inquired when the commission would say “enough is enough” and hold polls. Citing the example of Balochistan, the top judge said that the province had a 60 per cent turnout for polls despite security concerns.
The CJP remarked that the election commission was now “talking politically”.
Justice Ahsan said that caretaker governments have been formed so that no party received official support. He inquired if the caretaker government could “stay in power as long as it wants”.
Swati replied that the caretaker government’s tenure would be determined according to the “circumstances”.
Justice Akhtar reiterated that the electoral body informed the apex court that it only required resources, but was now claiming that polls were impossible according to the principles of the Constitution. The judge asked why the election commission did not earlier say that polls were not possible even with resources present.
The ECP’s counsel argued that the Commission’s written petition raised the point.
The chief justice maintained that the election commission did not inform the provincial governor or president about the facts but for two days argued in favour of rehearing the case. He asked which provisions of the Constitution would be invalidated by holding polls on the same day.
He further inquired how the leader of the House could be prevented from disbanding the Assembly.
“If the system is strong, perhaps all polls are possible separately. “Right now, you are travelling in the dark with no destination in sight,” he added.
Polls in October
The ECP counsel argued that the October date was given after analyzing the political environment and that the election commission had expressed concern over the protests of 9 May.
Justice Akhtar said that the lawyer couldn’t adopt a position that suited the election commission and prevented him from speaking about the incidents of 9 May.
He then inquired if all five assemblies could be separate, to which the ECP counsel said that if there are caretaker governments, separate polls could be possible. He added that separate polls were impossible due to the current situation.
Justice Akhtar inquired if the election commission could dissolve the provincial assembly if the National Assembly were dissolved first. He remarked that if the ECP were to be believed, there “would not be an elected federal government in the country”.
The ECP counsel stated that Article 224 of the constitution provided a solution in such a situation. However, Justice Akhtar argued that Article 224 was for every assembly, not only the federation.
Commenting on the problems with resources, the top judge said the election commission should not accept the excuses of the finance ministry and should seek a sold explanation from the government. He added that yesterday, supplementary grants of 20 billion rupees were approved for the assembly members and that the election commission also needed only 21 billion rupees.
The judge further remarked that the election commission itself was inactive and needed to increase its efficiency.
Talking about security issues, he said that the election commission asked for 450,000 security personnel, equivalent to the “total operational force”, and advised the electoral body to “think” whilst demanding.
The CJP told the ECP counsel to come after doing his “homework” so he would know the issues of the electoral watchdog.
Swati argued that the election commission was fully empowered and could take action. However, Bandial reiterated that the ECP had not been seen using powers.
Conditions for polls
He added that the ECP says that if the conditions are not favourable, polls could be postponed indefinitely.
The counsel argued that there was political division within the country, as demonstrated on 9 May.
Justice Akthar instructed that he focus on his case instead of mentioning 9 May and other incidents at other times.
The top judge also advised the ECP counsel to focus “on the Constitution”. The hearing was then adjourned till Monday.
